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BARTOLUS OF SASSOFERRATO 



CAMBRIDGE UNIVERSITY PRESS 

Hotttron: FETTER LANE, E.C. 

C. F. CLAY, Manager 






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All rights reserved 



BARTOLUS 

OF 

SASSOFERRATO 

HIS POSITION IN THE HISTORY OF 
MEDIEVAL POLITICAL THOUGHT 

BY 

CECIL N. SIDNEY WOOLF, M.A. 

FELLOW OF TRINITY COLLEGE, CAMBRIDGE, LECTURER AT THE 
LONDON SCHOOL OF ECONOMICS AND POLITICAL SCIENCE 

THE THIRL WALL PRIZE ESSAY, 191 3 



" We doubted of Ulpian, and are now more 
perplexed with Bartolus and Baldus." 

Montaigne, Essays, in. 13 (Cotton's Translation). 



Cambridge : 

at the University Press 

*9*3 



JCl*\ 



CambrtDgE ; 

PRINTED BY JOHN CLAY, M.A. 
AT THE UNIVERSITY PRESS 

X/ 6 3 



&?s 



MATRI PRIMITIAS 



PREFACE 

THAVE to thank the Adjudicators of the Thirl wall 
Prize for kindly allowing me to make all such 
additions and alterations, as I thought necessary to my 
essay before publication. I have accordingly added a 
few pages to the introductory Chapter I ; the pages in 
Chapter III dealing with Dante, Petrarch and other 
Italian thinkers ; and the short cone] uding Chapter. 
The material for these additions had been almost 
entirely collected before the essay was submitted to 
the Adjudicators, though lack of time had then pre- 
vented me from working it up. On the other hand, 
as a result of some further research, I have recast the 
end of Chapter III and made one or two small additions 
to Appendix A. 

Next year will be the six-hundredth anniversary of 
the birth of Bartolus, and the history of his posthumous 
fame, which is written in the catalogues of most large 
libraries, is instructive. For two centuries after his 
death he was recognised as "the prince of jurists"; 
from the invention of printing to the close of the 
sixteenth century, one edition of his works followed 
another. But Humanism, slowly, it is true, and not 
without protest, shattered his reputation. His works 
ceased to be printed, and the old editions were consigned 



Vlll PREFACE 

to the dust and cobwebs, which were for long thought 
the proper hiding-place of such " Gothic " authors. 
It was only the last century which restored Bartolus 
to "polite" learning. 

Bartolus has returned, not merely as a great lawyer, 
but as a political thinker — an important, if not a 
great, one. Of course, there must always be a large 
tract of debatable border-land between Law and 
Politics, however rigidly we separate one science from 
another. But this does not alter the fact that, to call 
Bartolus a political thinker, is to give him a title to 
which he himself made no claim, and which would, I 
think, have rather surprised him. This has seemed 
to me a distinction of great importance. I have re- 
ferred to it more than once in the essay itself, the 
form and scope of which it has necessarily affected. 

I may refer here to a topic, which I have considered 
outside the range of this essay. The authenticity of 
many of the works of Bartolus was already doubted 
at the Renaissance, and even earlier. Clearly, this is a 
question of some importance; and Savigny 1 , who is, so far 
as I know, the only modern authority who has handled 
it, does not pretend to have done so exhaustively. But 
the material for deciding the question finally was not to 
be found in England, even supposing I had been com- 
petent to decide it. The obvious course was, therefore, 
to follow Savigny — and this I have done with one or 
two exceptions. I have followed him in accepting the 
authenticity of the Commentaries on the Digestum 
Veins (with the exception of two " Repetitiones ") and 
on the Infortiatum ; I have also followed him in 

1 Geschichte des rom. Rechts im Mittelalter, vol. vi. c. liii. 



PREFACE IX 

rejecting the Commentary on the Institutes. But I 
have accepted the Commentary on the Authenticum 
as genuine, as to which Savigny does not seem 
decided; and I have similarly accepted the whole of 
the Commentary on the Tres Libri. The evidence 
against this latter is merely the very decided state- 
ment of Jason and Diplovatacius, two famous fifteenth 
century lawyers of the Bartolist tradition, that the 
share of Bartolus in the work ends at the " Lectura " 
on C. xi. tit. 34, the rest having for author one Contes 
de Perusio. Now as this division corresponds with no 
ostensible difference ; as the " Lectura " on C. xn. 1. 1 
is admittedly genuine ; as many of the " Lecturae " 
after, as before, the " Lectura " on C. xi. tit. 34 are 
signed, as being by Bartolus, in the one MS. 1 of the 
Commentary on the Tres Libri, which I have seen; and, 
finally, as the author of the " Lectura " on C. xi. 71. 1 
expressly refers to a certain opinion of his, as held by 
him in the Tractatus Minoritarum 2 , which is admittedly 
by Bartolus, I can see no reason to reject the latter part 
of this work. The Commentary on the Digestum Novum 
has never been suspected (though it will be found in 
Appendix A of this essay that the " Repetitio " on 
D. xxxix. 4. 15 has been shown not to be by Bartolus). 
The Consilia, Quaestiones and Tractatus, referred to in 
this essay, present no difficulty. 

A word of explanation is also necessary, I think, 
with regard to Chapter III. It will be remarked that 

1 Venice, Bibl. Naz. CI. v. Cod. m. 

2 P. 113, § 5 of the Bale ed. (1588-9): "Per hoe patet quod si 
legatum relinquitur ecclesiae S. Francisci, quod illud legatum est 
nullum... licet tenuerim contrarium in libello Minoritarum." 

w. b 



X PREFACE 

the political thinkers and publicists examined in that 
chapter are, with a few exceptions, all of a date anterior 
to that of Bartolus himself, and that the four political 
thinkers of prime importance, who were his contem- 
poraries — Marsiglio of Padua, William of Occam, Lupoid 
of Bebenburg, and the author of the Somnium Viridarii — 
receive only incidental notice. My apology must be 
that this is a work which has had to be finished within 
a given time, and that though, had the time and space 
at my disposal been unlimited, I should have attempted 
to continue my survey of political thought down to the 
close of the period with which this essay is concerned — 
and the proper close seems to me to be the return of 
the Popes from Avignon — to do so was not essential to 
my thesis. My aim in Chapter III was to demonstrate 
the existence of what I have called the Problem of the 
Empire, in the period which followed the fall of the 
Hohenstaufen, and to show that, while the problem 
faced the political thinker and publicist no less than 
the lawyer, the answers given to the problem by the 
former were very deeply affected by two causes, which 
operated hardly at all, or at least very little, on the 
answers given by the latter. Thus, to take an example, 
if I have succeeded in demonstrating the German 
answer to this problem by my analysis of the Be 
Praerogativa Romani fonperii of Jordan of Osnaburg 
and the Notitia Saeculi, it was not necessary, however 
interesting it would have been, to compare these 
earlier treatises with the treatise written some sixty 
years later by Lupoid of Bebenburg, De Jure Regni et 
Imperii. The earlier treatises can, of course, bear no 
comparison with the brilliant and acute treatise of 



PKEFACE XI 

Lupoid; but, as regards this problem, the answers of 
all three are, in essentials, the same — German. Simi- 
larly, to demonstrate the French answer, it was not 
necessary, after my analysis of the Be Potestate Regia 
et Papali of John of Paris and other contemporary 
treatises, to analyse the Somnium Viridarii. Where 
the later treatise in. one very important regard has 
advanced beyond the earlier treatises, I have noted it ; 
but, this point apart, the answer of the Somnium may 
be fuller than the earlier answers, but it is not a new 
answer. Neither in the German nor in the French 
answers to this problem was there the sort of develop- 
ment, which, I have attempted to show, took place in 
the Italian answer. 

Whether any apology is necessary for the amount 
of Latin which I have quoted in the text of this essay, 
I do not know. The practice is clearly disadvantageous 
from the point of view of literary form ; but I think 
that there is a more than balancing compensation in 
having before one, as often as possible, the actual 
words of the thinker, with whom one is concerned. 
What men say is not the only important thing : often 
it is equally important to know how they have said it. 
Besides, the works of Bartolus, despite innumerable 
editions, are not always accessible; and, in all cases 
to have put his own words into footnotes, and to have 
translated, or given the sense of the passages quoted, in 
the text, would have been to expand the essay to an 
unwieldy size. 

In addition to my thanks to the Adjudicators of the 
Thirlwall Prize for their permission to alter or add to 
my essay, I owe a great debt of gratitude to Dr Figgis. 

62 



Xll PREFACE 

It was he who set me on the subject of Bartolus, and — 
to leave out of account what this essay owes to his pub- 
lished books, to which my footnotes bear testimony — 
my thanks here can be no adequate acknowledgment 
of all I owe to the advice, which he has always been 
ready to give me. By reading the proofs, as the essay 
went through the press, he has honoured it in a way 
which only makes me wish the more that it were 
somewhat worthy of his notice. I have also to thank 
Mr Morant, of the India Office, for his kindness in 
reading the proofs, and my brother, Philip Sidney 
Woolf, who has helped me with the Index — but that 
is the least of the obligations which this essay owes 
him, but which neither he nor I would number or 
repay with public thanks. 

C. N. S. W. 
London, 

October 1913. 



NOTE ON AUTHOKITIES 

Throughout this essay, unless the contrary is specially stated, 
I quote from, and refer to, the works of Bartolus in the edition 
published at Bale 1 in 1588-9, in eleven volumes folio (including 
a volume of index). In making my references or quotations, I 
have referred to the title of the volume in the Bale edition. 
Thus 
Commentary on Digestum Vetus 

Part I. (i.e. Dig. I. — xi.) =Bale ed. vol. I. 

Part II. (i.e. Dig. xn. — xxiv. tit. 2) = „ „ „ II. 
Commentary on Infortiatum 

Parti, (i.e. Dig. xxiv. tit. 3 — xxix.)= „ „ „ III. 

Part II. (i.e. Dig. xxx. — xxxviii.) = „ „ „ IV. 
Commentary on Digestum Novum 

Part I. (i.e. Dig. xxxix. — xliv.) = „ „ „ V. 

Part II. (i.e. Dig. xlv. — l.) = „ „ „ VI. 

Commentary on Codex 

Part I. (i.e. Cod. i.— v.) = „ „ „ VII. 

Part II. (i.e. Cod. vi.— ix.) \ _ 

Tres libri (i.e. Cod. x.— xn.) J ~ " " 

Commentary on Authenticum 

(i.e. Novels) = „ „ „ IX. 

Consilia, Quaestiones, Tractatus = ,, „ „ X. 

1 The references are to this Bale ed., but as I was not always 
able to obtain it, when writing this essay, the actual wording of 
some of the quotations has been taken from other editions, chiefly 
a Turin ed. (1577) and a Venice ed. (1596). The texts differ oc- 
casionally in the different editions, but the differences are purely 
verbal and do not affect the sense of the passages in any way. 

2 The Comment, on the Tres Libri has separate pagination. 



VIII 2 . 



XIV NOTE ON AUTHORITIES 

Of the other authorities referred to, or quoted, in this essay 
I have used the following editions (works which are referred to in 
this essay as existing in periodical publications, the proceedings of 
societies, collections of treatises or monographs, being included 
in the general heading of the work containing them) : 
Abhandlungen der kbnigl. Gesellschaft der Wissenschaften zu 

Gottingen, vol. xiv. Gottingen, 1869. 
Acton (Lord), Letters... to Mary, daughter of Rt Hon. W. E. 

Gladstone. London, 1904. 
Albericus (de Rosate), Commentarium in Codicem. Lyons, 1545. 
Andreas (de Iserina), Super usibus Feudorum. Venice, 1514. 
Aquinas (S. Thomas), Summa Theologica. Paris, 1638. 

Aristotelis politicorum libri octo cum D. Thomae Aquinatis 

explanatione. . . .His accessere D. Thomae de regimine principum 
libri quatuor.... Venice, 1568. 

De Adventu et Statu et Vita Antichristi (ed. F. H. de 

Ferrari). Rome, 1840. 

Archivio Giuridico, vol. xxviii. Bologna, 1881. 
Aristotle, Politics, (ed. Newman). Oxford, 1887-92. 
Augustinus (Triumphus), Summa de Ecclesiastica Potestate. 

Lyons, 1489 (?), without pagination. 
Baumann (J. J.), Die Staatslehre des h. Thomas von Aquino. 

Leipzic, 1873. 
Bernabei (C), Bartolo da Sassoferrato e la Scienza delle Leggi. 

Rome, 1881. 
Bethmann-Hollweg (M. A. von), Der Givilprozess des Gemeinen 

Rechts.... Bonn, 1864-74. 
Bini (V.), Memorie Istoriche della Perugina Universita. Perugia, 

1816. 
Blondel (G.), Etude sur la Politique de VEmpereur Frederic II en 

Allemagne Paris, 1892. 

Bodin (J.), De la Republique. Paris, 1578. 

Boehmer (J.), Fontes Rerum Germanicarum, vol. I. Stuttgart, 1843. 

Bollettino della R. Deputazione di Storia Patria per V TJmbria, 

vol. ii. Perugia, 1896. 
Brandi (B.), Notizie intorno a Guillelmus de Cunio.... Rome, 

1892. 
Bryce (J.), The Holy Roman Empire. London, 1907. 



NOTE ON AUTHORITIES XV 

Bury (J. B.), The Constitution of the Later Roman Empire. 

Cambridge, 1910. 
Butler (A. J.), Forerunners of Dante.... Oxford, 1910. 
Buttrigarius (J.), Commentarium in Codicem. Paris, 1516. 
Carducci (G.-), Rim.e di M. Gino da Pistoia e oV altri del secolo XIV. 

Florence, 1862.. 
Carlyle (R. W. and A. J.), History of Medieval Political Thought 

in the West. Edinburgh and London, 1903-9. 
'Chiapelli (L.), Vita e Opere Giuridiche di Cino da Pistoia. 

Pistoia, 1881. 
Cino (da Pistoia), Commentarium in Codicem. Frankfort, 1578. 

Rime di Messer Cino da Pistoia, (ed. Bindi and Fanfani)- 

Pistoia^ 1878. 

Constitutiones et Acta Publica Pmperatorum et Regum, vol. I. (in 

"Monumenta Germaniae Historica"). Hanover, 1893. 
Corpus Juris Canonici (ed. Friedberg). Leipzic, 1879-81. 
Corpus Juris Civilis (ed. Krueger, Mommsen, etc.). Berlin, 

1889-95. 
D'Ancona (A.), II Concetto della Unitd Politica nei Poeti Italiani 

(Discorso).- Pisa, 1876. 
Dante, Tutte le Opere (ed. Moore). Oxford, 1904. 
Denkschriften der haiserl. Akademie der W issenschaf ten, phil. -hist. 

Classe, vol. u. Vienna, 1851. 
Dollinger (I. von), Historical and Literary Addresses (transl. 
. Warre). London, 1894. 

Fables respecting the Popes of the Middle Ages (transl. 

Plummer). London, etc. 1871. 

Dupuy (P.), Histoire du differ end Centre le Pape Boniface VIII et 

Philippes le Bel, Roy de France. Paris, 1655. 
Durandus (G.), Speculum Juris. Frankfort, 1668. . 
Egidius (Romanus), Be Regimine Principum. Rome, 1607. 
English Historical Review, vols. ix. and x. London, 1894 and 

1895. 
Epistolae Saeculi XIII, vol. I. (in " Monumenta Germaniae 

Historica"). Berlin, 1883. 
Faber (J.), Breviarium super Codice. Louvain,. 1475 (?). 
Feret (P.), La Faculte de Theologie de Paris. et ses Docteursles 

plus celebres. Paris, 1894-7. 



XVI NOTE ON AUTHORITIES 

Ficker (J.), Forschungen zur Reichs- und Rechtsgeschichte Italiens. 

Innsbruck, 1868-74. 
Figgis (J. N.), Studies of Political Thought from Gerson to Grotius. 

Cambridge, 1907. 
Finke (H.), Aus den Tagen Bonifaz VIII (no. 2 of "Vorre- 

formationsgeschichtliche Forschungen"). Minister in W., 

1902. 
Fisher (H. A. L.), The Medieval Empire. London, 1898. 
Gentilis (Albericus), Be Juris Interpretibus Dialogi Sex. London, 

1582. 
Gierke (0. von), Das Deutsche Genossenschaftsrecht. Berlin, 

1868-81. 

Political Theories of the Middle Age (transl. Maitland). 

Cambridge, 1900. 

Johannes Althusius...(no. 7 of Gierke : s "Untersuchungen"). 

Breslau, 1880. 

Giornale di Erudizione Artistica, vols. v. and VI. Perugia, 1876 

and 1877. 
Glossa Magna (to the Digest). Venice, 1584. 
Goldast (M.), Monarchia S. Romani Imperii.... Frankfort, 

1611-14. 

— — Politica Imperialia Frankfort, 1614. 

Graf (A.), Roma nella Memoria e nelle Immaginazioni del Medio 

Evo. Turin, 1882-3. 
Gregorovius (F.), History of the City of Rome in the Middle Ages 

(transl. Hamilton). London, 1900-9. 
Grotius (J.), De Jure Belli ac Pads. Amsterdam, 1631. 
Hardegen (F.), Die Imperial politik Konig Heinrichs II von 

England (no. 12 of " Heidelberger Abhandlungen"). Heidel- 
berg, 1905. 
Heller (J.), Deutschland und Frankreich in ihren politiscken 

Beziehungen vom Ende des Interregnums bis zum Tode Rudolfs 

von Habsburg Gottingen, 1874. 

Historisches Jahrbuch im Auftrage des Gorres-Gesellschaft, vol. xni. 

Munich, 1892. 
Hugelmann (C), Die deutsche Kbnigswahl im Corpus Juris 

Canonici (no. 98 of Gierke's " Untersuchungen "). Breslau, 

1909. 



NOTE ON AUTHORITIES XV11 

Huillard-Breholles (J. L.), Vie et Correspondance de Pierre de la 

Vigne. Paris, 1865. 
Igneus (J.), Commentarii in Aliquot Constitutiones Principum 

itemque in aliquot Responsa Juris consultorum. Lyons, 1541. 
Innocent IV (Pope), Commentaria super Libros quinque Decre- 

talium. Frankfort, 1570. 
Jafte (P.), Monumenta Gregoriana. Berlin, 1865. 
Journal of the Society of Comparative Legislation, vol. v., new 

series. London, 1905. 
Kampers (F.), Kaiserprophetieen und Kaisersagen im Mittelalter 

(no. 8 of Heigel and Grauert's "Historische Abhandlungen"). 

Munich, 1895. 
Knecht (A.), Die Religionspolitik Kaiser Justinians I. Wiirzburg, 

1896. 
"/Krammer (M.), Die Reichsgeddnke des staufschen Kaiserhaus (no. 

95 of Gierke's " Untersuchungen "). Breslau, 1908. 
Kraus (F. X.), Dante. Sein Leben und sein Werk. Berlin, 1897. 
Lancellotti (J. P.), Vita Bartoli.... Perugia, 1576. 
Lattes (A.), Un Punto Controverso nella Biografia di Bartolo. 

Turin, 1898. 
Libelli de Lite (in "Monumenta Germaniae Historica"). Hanover, 

1891-7. 
Lucas (de Penna), Commentarium in Tres Libros Codicis. Lyons, 

1591. 
Maitland (F. W.), English Law and the Renaissance. Cambridge, 

1901. 
Marquardsen (P.), Handbuch des oeffentlichen Rechts der Gegen- 

ivart. Freiburg im B., 1887. 
Mazzuchelli (Conte), Gli Scrittori d) Italia.... Brescia, 1753 — 63. 
" Meili (F.), Bartolus als Haupt der ersten Schule des intemationalen 

Strafrechts. Zurich, 1908. 
Melanges Fitting. Montpellier, 1907-8. 
Melanges Paul Fabre. Paris, 1902. 
Migne (J.), Patrologia Latina, vol. xli. Paris, 1841. 
Mirbt (C), Die Stellung Augustinbs in der Publizistik der Gre- 

gorianischen Kirchenstreits. Leipzic, 1888. 
Mittheilungen des Institutsfilr oesterreichische Geschichtsforschung, 

vols, vii., xvi., and xix. Innsbruck, 1886, 1895 and 1898. 



XVlli NOTE ON AUTHORITIES 

Muratori (J.), Rerum Italicarum Scriptores, vol. xi. Milan, 

1727. 
Negroni (C), Dante Alighieri e Bartolo da Sassoferrato. Lonigo, 

1890. 
Niemeier (A.), Untersuchungen ilber die Beziehungen Albrechts I 

zu Bonifaz VIII (no. 19 of Ebering's "Historische Studien"). 

Berlin, 1900. 
Notices et Extraits des Manuscrits de la Bibliotheque Imperiale, 

vol. xx. part 2. Paris, 1862. 
Nouvelle Revue Historique de Droit Francais et Etranger, vol. xiv. 

Paris, 1890. 
Nuova Antologia, vols. iv. and vi. Florence, 1867. 
Ohr (W.), Der karolingische Gottesstaat in Theorie und Praxis 

(Dissertation). Leipzic, 1902. 
Oldradus (de Ponte), Consilia et Quaestiones. Rome 1472, without 

pagination. 
Padaletti (G.),- Contribute alia Storia dello Studio di Perugia nei 

secoli XIV e X V. Bologna, 1872. 
Pertile (A.), Storia del Diritto Italiano.... Turin, 1891 — 1903. 
Petrarch, Epistolae de Rebus Familiaribus et Va?-iae...(ed. Fraca- 

setti). Florence, 1859-63. 

Opera quae extant omnia. Bale, 1554. 

Petrus (de Bella Pertica), Repetitiones in aliquot... Codicis Leges. 

Frankfort, 1571. 
Pollock (Sir F.), History of the Science of Politics. London, 

1910. 
Pom tow (M.), Ueber der Einfluss der altrbmischen Vorstellungen 

vom Staat auf die Politik Kaiser Friedrichs I und die An- 

schauungen seiner Zeit (Dissertation). Halle, 1885. 
Poole (R. L.), Elustrations of the History of Medieval Thought. 

London, 1884. 
Rabelais (F.), The ivhole Works of F. Rabelais, M.D. (transl. 

Urquart, Motteux and others). London, 1708. 
Ragewin, Gesta Friderici I Imperatoris (ed. Waitz). Hanover, 

1884. 
Ramsay (Sir W.), The Church in the Roman Empire. London, 

1893. 
Renan (E.), Averroes et V Averro'isme. Paris, 1852. 



NOTE ON AUTHORITIES XIX 

Revue Ristorique, vol. xlix. Paris, 1892. 

Biezler (S.), Die liter arische Wider sache der Pdpste zur Zeit 

Ludwig des Baiers. Leipzic, 1874. 
Robertson, (A. bishop of Exeter), Regnum Dei (Bampton Lectures). 

London, 1901. 
Salvemini (G.), La Teoria del Bartolo da Sassoferrato sidle 

Gostituzioni Politiche (in " Studi Storici "). Florence, 

1901. 
Sandys (Sir E.), Europae Speculum.... London, 1687. 
Savigny (F. C. von), Geschichte des romischen Rechts inn Mittelalter. 

Heidelberg, 1834-51. 
Scholz (R.), Die Publizistik zur Zeit Philipps des schonen und 

Bonifa£ VIII (nos. 6 — 8 of Stutz's " Kirchenrechtliche 

Abhandlungen "). Stuttgart, 1903. 
Schraub (W.), Jordan von Osnabriick und Alexander von Roes 

(no. 26 of " Heidelberger Abhandlungen"). Heidelberg, 

1910. 
Selden (J.), Table-Talk . London, 1716. 
Sitzungsberichte der phil.-hist. Classe der kaiserl. Akademie der 

Wissenschaften, vol. lxxxviii. Vienna, 1878. 
Stintzing (R. von), Geschichte der populdren Literatur des romisch- 

kanonischen Rechts in Deutschland Leipzic, 1867. 

Textes pour servir a Vetude de Vhistoire. Paris, 1891. 

Theiner (A.), Codex Diplomaticus Dominii Temporalis S. Sedis. 

Rome, 1861-2. 
Tourtoulon (P.), Les CEuvres de Jacques de Reoigny {Jacobus de 

Ravanis).... Paris, 1899. 
Transactions of the Royal Historical Society 1 , vols. xix. (2nd 

series) and v. (3rd series). London, 1905 and 1911. 
Witte (J. H. F. C), De Bartolo a Saxoferrato, Dantis Alligherii 

studioso, commentatiuncula.... Halle, 1861. 
Zabarella (Card.), Commentarium in Decretales. Venice, 1502. 

1 The paper in vol. xix. "Bartolus and European Political Ideas," 
by Dr Figgis is reprinted in the new ed. of his Divine Right of Kings ; 
his paper in vol. v., " Respublica Christiana," will be reprinted, he 
tells me, in a new book on the Churches in the Modern State. 



CONTENTS 



CHAPTER I 

INTRODUCTION (pp. 1 — 20) 

Outline of the life of Bartolus (p. 1). Bartolus a lawyer, not a 
political philosopher (4). Bartolus and the Gloss (5). His independ- 
ence (7). Practical character of his work (9). His conception of 
Civil Law (12) and of the civilian's task (19). 



CHAPTER II 

THE POLITICAL THEORIES OF BARTOLUS (21 — 207) 

The Roman Emperor de jure lord of the world, though de facto 
not universally obeyed (21). The Empire conterminous with western 
Christendom (25). The Roman Emperor a German (28). The rights 
of the Emperor before coronation (30). The Empire a delegation from 
the People (34). The delegation irrevocable. The Emperor alone 
can now make general laws (36). His laws universally valid (40). The 
Emperor, though not bound by his own laws, is bound by the higher 
laws of God, Nature and Nations (45). He cannot deprive anyone of 
his property without cause (46). He cannot permit usury, though the 
Civil Law does permit it. Importance of the fact that the Civil Law 
was in great part of pre-Christian origin (47). But though the 
Emperor's, as all human, laws cannot contradict, they can amplify, 
the higher laws (48). 

Relations of this de jure universal Empire with the powers, which 
de facto do not recognise it : 

I. The Empire and the Papacy. Early history of their relations. 
The ' ' Gelasian ' ' theory of coordination and equality and the practical 
superiority of the temporal power in the early Middle Ages (53). The 
Investiture struggle recast both theory and practice. Primarily the 



CONTENTS XXI 

Papalists were combating the supremacy of the temporal power within 
the Church (57). Only when driven to it by the course of the conflict, 
did they maintain the human or sinful origin of the temporal power 
(61). In so doing they reverted to S. Augustine's distinction between 
the holy "Civitas Dei" and the sinful " Civitas terrena." Inapplic- 
ability of this distinction, when the Empire was no longer Pagan (64). 
The Imperialists in the main on the defensive (67). The entry of 
Eoman Law into medieval political thought. The " Gelasian " theory 
of the coordination and equality of the two powers became the typical 
standpoint of the lawyers (70) . This is illustrated by Bartolus himself 
(72). He extends the coordination of the two powers from their juris- 
dictions to their territories (75), though this does not exclude the 
conception of the Empire and Papacy as the two supreme ruling- 
powers of the universe (79). This is further illustrated by his treat- 
ment of Canon Law (80) . Importance of his attitude towards Canon 
Law and the canonists (85). But Bartolus, when compelled to consider 
the Papal claims to superiority over the temporal power, throws over 
the theory of the coordination and equality of the two powers in favour 
of the Papacy (86), and accepts the Donation of Constantine as valid 
(94) . ' ' Plane ludit ' ' (98) . Summary (99) . His thought on this topic 
of no great value in itself, but very valuable as illustrating the course 
of medieval thought (100). Criticism of the Respublica Christiana of 
Dr Figgis (101). 

II. The Empire and the Regna. Bartolus was concerned with 
the cities of Italy, not with the kingdoms (107), though the problems 
presented by both were for the most part identical (108). Bartolus 
recognises the royal power as "de jure gentium," and the kings as 
independent, though within the Populus Romanus or Roman Empire 
(110). 

III. The Empire and the Civitates. Difference between the con- 
ception of the Civitas in the political thought of the civilians and that 
of the Aristotelians (112). For the civilian the Civitas was merely a 
corporation (113). Thus the problem was to secure for the Civitas 
rights properly belonging only to higher political units (115). Bartolus 
establishes (1) the right of the Civitas to be considered a Respublica 
(116) ; (2) the right of the Civitas to be considered its own Fiscus (119) ; 
(3) the right of the Civitas to exercise Merum et Mixtum Imperium 
(122). This right is the distinguishing mark between the Provincia 
or Regnum and the Civitas (126). History of the terms (127). The 
Civitas, which owns no superior, can exercise Merum et Mixtum 
Imperium by concession, prescription or mere usurpation (134) ; (4) the 
right of the Civitas to legislate (144). History of the medieval Italian 
statutes and customs (145). The Civitas, as a licit corporation, can 



XX11 CONTENTS 

legislate on its own internal affairs (146). But the question at issue 
was, less the abstract right to legislate, than the limits within which 
the legislation was valid (147). The "collisio statutorum" (148). 
The collision of statutes or customs with the "jus commune" or the 
higher laws (149). The Civitas, which owns no superior, can legislate, 
as it wills, within its own boundaries (153). In fact, it is, within its 
own boundaries, the Empire in miniature — "sibi princeps" (154). 
Importance of this phrase, (160). The Civitas can now be considered 
a "State," and Bartolus regarded the fact that the majority of these 
Civitates were actually in the hands of tyrants, as a non-normal episode 
in their existence (162). Analysis of his Tractatus de Tyrannia (163). 
It now remains to consider the Civitas, as a State, with regard to 
(i) internal government (174) . While refusing to be dogmatic, Bartolus 
considers democracy the best form of government for the ordinary 
Civitas (175). The people is sovereign, the government dependent 
upon the people for its authority (181). This is illustrated by his 
treatment of the ' ' ambitiosa decreta ' ' of the Decuriones (182) . Signi- 
ficance of this democratic theory of the Civitas (188). The Tractatus 
de Guelphis et Gebellinis (189); (ii) external relations (195). The de 
jure universal Empire remains intact, in spite of de facto disobedience 
to the Emperor. The Emperor's place' is taken by Law (197). This 
is illustrated by the views of Bartolus on war, as between independent 
Civitates (198), and by his views on the Banniti (exiles) (200). Bartolus 
bases his scheme of international relations on the unity of western 
Christendom in one Populus Bomanus or Roman Empire, and on the 
universal validity of Roman Law (201). His Tractatus Reprae$alia,rum 
(203). 



CHAPTER II [ 

THE PROBLEM OF THE EMPIRE (208 — 383) 

The Empire again to be the centre of our inquiries (208). The 
problem of the Empire after the fall of the Hohenstaufen (209). 
Political conditions at the opening of the period (1) in southern Italy 
(212) ; (2) in northern Italy (213) ; (3) in western Europe generally. 
The growth of nationalism (214). Attempts of Charles of Anjou to 
secure the election of French Popes and a French Emperor (215). 
Radical reforms projected by Urban IV (218) and Clement IV (219). 
Proposals of Humbert de Romanis (220). Plans of Nicholas III (221). 
Significance of these projects (222). The treatise De Praerogativa 
Bomani Imperii of Jordan of Osnaburg. Question of its authorship 



CONTENTS xxill 

^227). Analysis of Chapter I (231). In spite of differences, the stand- 
point both of Chapter I and of the remaining chapters is essentially 
the same. They give us the German answer to the Problem of the 
Empire (234). Analysis of the remaining chapters (236) and of the 
Notitia Saeculi (251). Neither of these treatises shows any trace of 
being influenced by the new political theories based on Aristotle's 
Politics (266). The Aristotelians had to account for two great institu- 
tions foreign to the world of Aristotle himself — the Papacy (267) and 
the Empire (272) . The attempt of the continuation of the Be Regimine 
Principum of Aquinas to account for the Empire (275). The similar 
attempt of Engelbert of Admont (278). Analysis of his treatise Be 
Ortu et Fine Romani Imperii (281) . Its significance (289) . The Italian 
answer to the problem of the Empire as given by Dante (303), by Cino 
da Pistoia (308), and by Petrarch (309). The German and Italian 
answers illustrated by a comparison between poems of Lupoid of 
Bebenburg and Fazzio degli Uberti (312). The struggle between 
Boniface VIII and Philip the Fair produced the French answer to the 
problem of the Empire. The Papal claims to superiority over France. 
The Donation of Constantine (315). The Pope "verus imperator" 
(322). Importance of the "Imperial" claims of the Popes in the 
present struggle (328). The alliance of Boniface VIII and Albert, 
king of the Bomans (332). Boniface recognises the universality of the 
Empire (333), nor is he unique among the Papalists in doing so (335). 
Such recognition is not inconsistent with the doctrines of Papal 
supremacy (337). The French position — its aggressive side (341). 
Its defensive side (342). The Papal claims, so far as they were based 
on the Donation of Constantine, easily refuted (343). As Aristotelians, 
the French publicists could almost ignore the Empire (350) . At other 
times, they allow that the Empire may be subject to the Papacy, but 
deny that the same is true of France (353). But this line of argument 
was dangerous (355), and in fact we find them compelled to link the 
cause of the Empire to their own (358). We even find John of Paris 
more than once recognising the universality of the Empire (364). The 
real solution of the problem was contained in the phrase, current by 
the middle of the fourteenth century — " Bex in regno suo est Imperator 
regni sui" (368). The phrase is not to be found in the literature of 
the present struggle, except in the Quaestio in Utramque Partem (369), 
the date of which is disputed (370). History of the phrase (372). 
Bartolus was not the author of the phrase — the author was possibly 
Oldradus — but his ' ' Civitas sibi Princeps ' ' is the exact counterpart of 
the "Bex Imperator regni sui" (380), and he was the first to adopt 
the solution of the problem of the Empire, which these phrases imply, 
fearlessly, consistently and regularly (381). 



XXIV CONTENTS 

CHAPTER IV 
conclusion (384 — 394) 

Divergent estimates of Bartolus by Dr Figgis and Dr Chiapelli 
(384). Bartolus not an Aristotelian (385). Importance of his dis- 
tinction between Law and Fact (388). He must be judged, not 
in isolation, but as one of the medieval civilians (389). His influence 
on political thought has survived his popularity, which the Benaissance 
shattered (392). 

Appendix A — Biographical . . . . . . . (395) 

Appendix B — Bartolus and the Canonists .... (402) 

Appendix C — Jurisdictio and Imperium (405) 

Index (408) 



CHAPTER I 

INTRODUCTION 

Bartolus 1 was born in the year 1314 at Sassofer- 
rato. Nearly all that we know of his early life he has 
told us himself 2 . His first master was a Friar Peter 3 , 
who afterwards established a home for foundlings at 
Venice — "vir est expertus," Bartolus wrote of him long 
after, "nullius hypocrisis, mirae sanctitatis apud me 

1 In the first few pages of this introductory chapter I merely 
attempt to give a brief outline of the known facts of Bartolus' life. 
The greater part of what we know of Bartolus comes from his own 
works: I therefore give references to these wherever possible. After 
his own works, our chief authority must always be Savigny's Geschichte 
des romischen Rechts, vol. vi. chap. 53. But Savigny wrote more 
than sixty years ago, and there are naturally both additions and 
corrections to be made. Some of these I have attempted to collect in 
an Appendix from the following sources: — 1. Works published since 
Savigny's history, which throw light on Bartolus' biography; these, 
so far as I know, are only two — (i) the publication by Bossi of 
documents relating to Perugia University (those which concern 
Bartolus are in vols. v. and vi. of the Perugian Giornale di Erudizione 
Artistica, 1876-7); (ii) a short pamphlet by Lattes, Un Punto con- 
trover so nella biografia di Bartolo. 2. Passages in Bartolus' works 
which were not noticed by Savigny. 3. The few mss of Bartolus' 
works which I have been able to see. Vide Appendix A, below. 

2 Bartolus, Comment, on Dig. Nov. Part n. (D. xlv. 1. 132), 
pp. 148-9, § 8. 

3 Savigny has shown that the fable of Bartolus himself having 
been a foundling rests on a misunderstanding ; the home was established 
at Venice long after Bartolus had grown up. 

w. 1 



2 INTRODUCTION [CH. 

et omnes qui eum bene noscunt...et ex multo amore 
quern ad illius fratris Petri bonitatem gero, cum cala- 
mus hoc scribit, cordis oculus lacrymatur." At a very 
early age, thirteen or fourteen, Bartolus went to Peru- 
gia and studied law under Cino da Pistoia 1 , famous 
both as a poet and as a lawyer, the friend of Dante 
and Petrarch. Bartolus told his great pupil Baldus 
that "illud quod suum fabricabat ingenium erat lectura 
Cyni 2 ." Later, but probably not for long, Bartolus 
studied at Bologna, again under famous lawyers — 
Jacobus Buttrigarius 3 , Oldradus de Ponte 4 , Raynerius 
Forlivensis 5 and Jacobus de Belvisio 6 . Here he took his 
doctor's degree in 1334, when not yet twenty. For the 

1 Bartolus refers to opinions of Cino as given "me audiente" 
several times. Vide Comment, on Dig. Vet. Part n. (D. xvi. 3. 33), 
p. 320, §4; Comment, on Infort. Part n. (D. xxxn. 1. 22), p. 156; 
Comment, on Dig. Nov. Part n. (D. xlvi. 7, sup. rubric), p. 299, §4 
and (D. xlvii. 2. 63, § Quod vero), p. 355, § 5; and the important 
autobiographical passage referred to in the last note but one. 

2 Quoted by Savigny, p. 142, note i. 

3 Bartolus mentions him as his master in Comment, on Infort. 
Part i. (D. xxviii. 3. 17), p. 315, § 8; Comment, on Infort. Part n. 
(D. xxxviii. 11. 10, § Sunt et ex), p. 539; Comment, on Dig. Nov. 
Part i. (D. xli. 2. 3, § Ex contrario), p. 247, §4; (D. xli. 3. 15), 
p. 311, §72 and Quaest. xv. — "Hanc quaestionem disputavit do. 
Bart, in scholis domini Jac. Butrig. Anno domini mcccxxxiii die 
xv mensis Decembris " (p. 245). 

4 The only mention I have found is in Comment, on Codex, Part i. 
(C. v. 10. 1), p. 531, § 7. And vide Savigny, p. 143, note k. 

5 Mentioned as his master in Comment, on Infort. Part i. (D. xxviii. 
3. 17), p. 315, §8; Comment, on Dig. Nov. Part i. (D. xli. 3. 15), 
p. 299, §§ 4 and 8; Comment, on Dig. Nov. Part II. (D. xlv. 1. 73, 
§ Stichi), p. 84; Comment, on Codex, Part i. (C. v. 10. 1), p. 532, 
§ 10; and Quaestio xiv. § 14, p. 242. And vide Appendix A. 

6 Bartolus frequently refers to Jac. de Belvisio, but never mentions 
him, as far as I have been able to see, as his master. Vide Savigny, 
however, p. 143, note k. 



I] INTRODUCTION 3 

next live years of his life it is difficult to fix the order of 
events with certainty: we only know that he was Asses- 
sor at Todi 1 and Pisa 2 , and that he spent some con- 
siderable time in solitude "ad studendum et revidendum 
libros per me ipsum 3 ." Then in 1339 he became Pro- 
fessor at Pisa 4 University. Here he remained until 
1343, when he migrated to Perugia, the city and Uni- 
versity most closely connected with his fame. In 1348 
he and his brother were made citizens of Perugia, Bar- 
tolus being specially exempted from the statute which 
forbade citizens from holding the professorships of the 
University 5 . In 1355 Bartolus represented Perugia on 
an embassy to the Emperor Charles IV at Pisa 6 . The 
Emperor received him with great marks of honour, 
made him a Privy Councillor, gave him a coat of arms 
and the privilege, both for himself and such of his heirs 

1 Vide Comment, on Infort. Part n. (D. xxxv. 2. 24), p. 392: 
"Quaestio erat quaedam Tuderti...Ego dixi per istam legem." 
Comment, on Dig. Vet. Part i. (D. vin. 3. 38, § Idem juris), p. 603: 
"Habui hanc quaestionem in civitate Tuderti." Vide Tract, de 
Guelphis et Gibellinis, ad init. 

2 Comment, on Dig. Nov. Part i. (D. xli. 3. 15), p. 309, § 50, and 
(D. xli. 1. 63, § Quod si servus), p. 233. 

:i Comment, on Dig. Vet. Part i., Prima Constitutio (Omnem, 
§ Haec autem tria), p. 13, § 2. 

4 Vide Comment, on Infort. Part n. (D. xxxv. 2. 59), p. 398, § 2; 
Comment, on Dig. Nov. Part n. (D. xlv. 1. 73, § Stichi), p. 84; 

,Comment. on Infort. Part i. (D. xxviii. 5. 29), p. 338, § 9. Below, 
p. 5, n. 1. 

5 The documents are in Eossi, nos. 66-8, vol. v. pp. 184-8, and 
were printed in the sixteenth century by Lancellotti, Vita Bartoli. 

6 Vide Comment, on Infort. Part i. (D. xxviii. 2. 29, § Forsitan), 
p. 301, § 1; Comment, on Const, ad Reprimendum, sup. rubric, p. 261; 
Tract, de Insign. et Armis, § 3, p. 341 ; Tract, de Reg. Civ. § 18, 
p. 420; Tract. Testimoniorum, § 80, p. 445, and the diplomas in 
Eossi, nos. 96-9, vol. v. pp. 374-80. No. 99 is also in Lancellotti, 
op. cit. 

1—2 



4 INTRODUCTION [CH. 

as should be doctors of law, to legitimate bastards and 
grant the "venia aetatis." Bartolus died not long after, 
almost certainly in 1357 \ 

In this essay we are to examine Bartolus as a poli- 
tical thinker. This bare outline of the known facts of his 
life shows us that Bartolus was a lawyer, that his whole 
life was spent in the study, practice and expounding 
of law. In fact we shall have continually to keep in 
mind that Bartolus was no political philosopher; that 
his political thought is to be found in his commen- 
taries and treatises on Law, not Politics. Just for 
this reason it is important, before we turn to his political 
thought, to get some insight into the position of Bartolus 
as a lawyer. 

Bartolus is a Postglossator, the greatest and most 
famous of the Postglossators. The period of the Glos- 
sators had ended and been summed up in the great 
Gloss of Accursius. The work of the Bolognese Glos- 
sators had been primarily to restore the text of the 
Law Books and then to interpret those texts literally. 
Their position was very nearly that of the present-day 
expounder of Roman Law; but they differed from him, 
not only in the relative poverty of the material at their 
[disposal, but also because to them Justinian's Law 
'Books represented a still living system of law. This 
we shall find is a point of great importance. The Law 
Books were compiled in the sixth century; the 
Glossators were living in the twelfth and thirteenth 
centuries. Law and fact necessarily contradicted each 
other in numerous cases, and where this was so, the 

1 Savigny shows that this must almost certainly b& the date, 
as that 1314 is almost certainly the date of his birth. 



I] INTRODUCTION 5 

Glossator attempted to bend facts to meet a literal 
interpretation of the law, or else made concessions 
to fact only with great reluctance. 

The position of the Postglossator was very different. 
It is not that there was any definite break in the tra- 
dition; the work of the Postglossators was the direct 
continuation of that of the Glossators. Only, in the 
first place, between the Postglossator and his texts now 
stood the Glossa Magna; in the second place the aim 
of the Postglossator was essentially, rather to evolve a law 
practically effective for the world in which he lived, 
than to expound a law scientifically correct according 
to the texts. Let us see how Bartolus stands with regard 
to these two points. 

Whatever may be true of the Postglossators gene- 
rally, Bartolus himself was no slavish dependent on the 
Gloss. Indeed, a reaction against the overwhelming 
authority of the Gloss had already begun under his 
master Cino and the French "Ultramontane" lawyers 
with whom Cino is, intellectually, in close connexion 1 . 
A single quotation will illustrate Bartolus' attitude to 

1 Vide Chiapelli, Vita e Opere Giuridiche di Cino da Pistoia, 
pp. 186-91. Vide Bartolus, Comment, on Dig. Nov. Part n. (D. xlvi. 

1. 17, § Cum fidejuss.), p. 201: "Pet. de Bella Pert...dieit quod hane 
glossam diabolus revelavit." Cf. Comment, on Dig. Nov. Part i. 
(D. xlii. 2. 2), p. 384, §6; Comment, on Dig. Nov. Part i. (D. xliv. 

2. 7, § Et generaliter) , p. 499. Bartolus also records cases of condem- 
nation of the Gloss by others besides Cino and the Ultramontani. 
Vide e.g. Comment, on Difort. Part n. (D. xxxv. 2. 39), p. 396: 
" Glossam quae est in...damnavi vobis per istum textum et ibi damnat 
Dynus et Jac. de Arena." Comment, on Infort. Part n. (D. xxxn. 
1. 22), p. 157, § 5: "Glossa male loquitur et bene reprehenditur per 
Jac. de Arena." Comment, on Dig. Nov. Part i. (D. xxxix. 1. 5), 
p. 32, § 3: "Quando legi Pisis, librum habui d. And. de Pisis 
aliquibus diebus et reprobabat istam opinionem glossae." 



6 INTRODUCTION [CH. 

the Gloss. "Nota quod non debemus sequi consilium 
Imperatoris si videtur nobis quod non sit bene latum, 
et hoc est contra eos qui judicant secundum dicta 
nostrarum glossarum. Unde non est mirum si recedatur 
a dictis glossae, si Veritas est in contrarium aut ratio 
aut lex 1 ." On the other hand the Gloss formed a neces- 
sary part of his exposition of the Civil Law; in fact by 
the statutes of Perugia University the Professor was 
bound to read the Gloss immediately after the text 
which he was about to expound 2 . Thus the Gloss 
must always be considered 3 , no less than the text; only 
iBartolus was ready to accept 4 it or reject 5 it, as he 
thought .fit. Nor was Bartolus altogether unmindful of 

, 1 Vide Comment, on Codex, Part n. (C. vn. 45. 13), p. 195. 

2 Vide Padaletti, Contribute alia Storia dello Studio di Perugia nei 
Secoli XIV e XV, p. 93: "Item statuimus quod omnes doctores actu 
legentes in jure canonico et civili immediate postquam legerunt 
eapitulum vel legem, glossas legere teneantur, nisi continuatio capituli 
vel legis aliud fieri suadeat...." 

3 A glance at any page of Bartolus' commentaries will illustrate 
this — as a random example vide the opening words of his Repetitio 
on D. xli. 3. 55, Comment, on Dig. Nov. Part i. p. 298 (this, he tells 
us, was the first Repetitio he ever delivered) : "Haec lex difficilis est 
in textu, difficilior in glossa et dimcillima in materia extra glossam." 

4 Vide e.g. Comment, on Dig. Vet. Part i. (D. iv. 3. 19, § De eo 
qui), p. 426: "Glossa ponit hie unam distinctionem valde pulchram 
melius et plenius quam in aliqua parte mundi et doctores recitant earn 
ut jacet." Cf. Comment, on Infort. Part n. (D. xxx. 1. 37), p. 32: 
"Signa illam glossam ut magistram in hoc titulo." Comment, on 
Infort. Part i. (D. xxvm. 2. 29), p. 286. 

5 Vide e.g. Comment, on Dig. Nov. Part i. (D. xxxix. 1. 1), p. 20, 
§ 10: " Sed glossa potest can tare quantum vellet, quia solutio ista est 
contra diet. §." Cf. Comment, on Dig. Nov. Part n. (D. xlvi. 3. 95), 
p. 272, § 1: "Est quaedam glossa super verbo 'interim' quae intricat 
istum textum qui de se procedit clare et plene : ideo de ilia glossa non 
euro." Comment, on Infort. Part i. (D. xxvm. 7. 9), p. 386. Com- 
ment, on Dig. Nov. Part n. (D. xlvii. 1. 2), p. 332, § 11. 



I] INTRODUCTION 7 

the text. The story how he and his friend and colleague, 
Franciscus de Tigrinis, sent from Perugia to consult 
the famous Pisan manuscript of the Digest, now in the 
Laurentian library at Florence, is well known 1 . Un- 
doubtedly too much stress is not to be laid on what is, after 
all, an isolated incident. The main concern of Bartolus 
was not with the scientific correctness of his texts or 
their literal interpretation; even so the incident is all 
the more noteworthy in the age of the Postglossators, 

If he was independent of the Gloss, as an authority, 
still more independent was Bartolus with regard to other 
lawyers; he boasted that where he borrowed from his 
predecessors, he made no attempt to hide his borrow- 
ing, as others had done 2 — nor need we doubt the truth 
of this 3 . Elsewhere Bartolus has explained his views 



1 Vide Comment, on Codex, Part i. (C. iv. 6. 2), p. 387: "...Misimus 
usque ad Pisas do. Franc. Accursius (Savigny has shown that this 
ought to be Franciscus Tigrinis) et ego ad videndum Pandectas." 
Bartolus recalls this again in Comment, on Dig. Vet. Part n. (D. xx. 
5. 7, § Quaeritur), p. 442. The "litera Pisana" is mentioned again 
in Comment, on Dig. Vet. Part n. (D. xn. 1. 1), p. 3, §6; the "vel 
Florentina," found in some editions, being of course an addition, 
since the ms was not removed to Florence till after Bartolus' death; 
it is wanting in the only bis of Bartolus' Comment, on Dig. Vet. Part n. 
which I have seen. 

~- 2 Vide Comment, on Dig. Nov. Part i. (D. xxxix. 1. 8, § Morte ejus), 
p. 41, §§ 9, 10: "Et quia iste § singularis est, circa earn materiam 
protestationis tractabo, quam primo latius tractavit Jo. Monacus 
Cardinalis...et Jo. Andreae earn recitat de verbo ad verbum...Item 
And. de Pisis posuit istam materiam in quadam repetitione quam 
fecit et Jo. praedictum quasi in omnibus est secutus; de eo tamen 
nullam mentionem facit. Ideo ego de omnibus mentionem facio, ut 
quod suum est f urari non videar ; in eo vero quod est meum cognoscar ; 
et si minus bene dixero, ego redarguar; si vero bene, Deus laudetur; 
ego vero ut minimus instructor reputer." 

3 Savigny indeed quotes a passage from Baldus— "...d. Bart... 



8 INTRODUCTION [CH. 

on authority with great precision. The Middle Ages / 
were no doubt far too inclined to bow to authority; ! 
but the charge is often somewhat vague, and it is there- 
fore well worth noting his own words, well worth seeing 
what authorities the man, whom we are to examine in 
this essay, was prepared to recognise. "Debes scire," he 
says, "quod quaedam scripta seu authoritates sunt 
approbatae ab Imperatore vel a summo Pontifice, et 
istae probant et concludunt necessarie... Quaedam sunt 
scripta per summum Pontificem vel Principem nee 
approbata nee reprobata; et ista sunt cluplicis generis: 
quaedam sunt scripturae enunciativae, alias recitativae, 
ut libri historiales, chronica et similia, et istis, si a 
jiostris antiquis creditum videmus, et nos etiam debe- 
mus credere, sicut aliis antiquis scripturis.... Quaedam 
sunt scripturae quae procedunt disponendo et deter- 
minando, non enunciando, et in his advertendum quid 
servant studia. Quaedam enim scripturae, tamquam 
authenticae in studiis reputantur, ut dicta Aristotelis 
et Hippocratis et similium, quae tamquam scripturae 
authenticae in studiis servantur, et istis est standum... 
Quaedam sunt scripturae quae a studiis non appro- 
bantur, nisi probentur per rationem, et istae dicuntur 
magistrates probationes, non tamen necessariae. Istis 
quidem non est standum si contrarium videretur, et 
nisi quatenus necessarie concluderent 1 ." 

Certainly the passage makes no wide claim for 
unfettered thought. But we note — and this is the 
important thing for us — that neither the Gloss nor any 

furatus fuit Petro (a Bella Pertica)," but we need not lay too much 
stress perhaps on a single statement of this sort. 

1 Vide Comment, on Dig. Vet. Part n. (D. xn. 1. 1), p. 5, §§ 21-3. 



I] INTRODUCTION 9 

individual lawyer 1 is given the same position in the 
lawyer's Studium as Aristotle is alloAved to enjoy in 
the philosopher's or Hippocrates in the physician's 
Studium — "quae tamquam scripturae authenticae in 
studiis servantur." The opinion of the Gloss is thus 
only "probable," not "necessary," just as is that of any 
doctor — "nullus te cogit stare opinioni doctoris 2 ." 

We shall so often in the coming pages of this essay 
have occasion to note how Bartolus was concerned to 
evolve a law practically effective for the Italy of his 
day, that it is unnecessary at present to dwell at any 
length on this characteristic of his work. It is indeed 
just this characteristic which redeems the otherwise far 
from pleasant reading of the voluminous commentaries 
of Bartolus and their uncouth Latin. At every page we 
are transplanted into the active many-sided life of the 
Italian cities of the fourteenth century 3 ; there is always 

1 Of course this does not apply to the old Jurisconsulti from 
whose works the Digest is composed. Vide the following passage 
which immediately precedes the passage on authority already quoted : 
"Hie habes locum ab authoritate quia jurisconsultus probat dicta 
sua per authoritatem Celsi. Sed contra hoc facit quia authoritas 
doctoris, licet sit probabilis, non est necessaria...Solutio: ilia jura 
loquuntur de doctore simplici, sed Celsus, de quo hie loquitur, erat 
doctor et jurisconsultus, qui habebat potestatem condendi legem, 
unde et ejus interpretatio, cum sit necessaria, sicut interpretatio 
principis...merito potuit allegari." 

2 Vide Comment, on Codex, Part i. (C. i. 14. 1), p. 87, §§7-9: 
' ' Debes scire quod est interpretatio generalis et necessaria et in scriptis 
redigenda et istam potest facere solus Princeps, ut hie. Quaedam est 
interpretatio necessaria et in scriptis redigenda, non tamen est generalis, 
et istam potest facere quilibet judex et proferre sententiam procedendo 
de similibus ad similia...Tertia est interpretatio probabilis, tamen non 
est necessaria, et potest in scriptis redigi, ut interpretatio doctorum, 
quia nullus te cogit stare opinioni doctoris." Cf. Comment, on Dig. 
Vet. Part n. (D. xn. 1. 1), p. 2, § 6. 

3 The following quotations will serve as examples. Vide Comment. 



10 INTRODUCTION [CH. 

something that reveals the man and his age. We have 
remarked that most of our knowledge of Bartolus is 
derived from what he himself tells us; the references, 
which we have already given, might easily be supple- 
mented. Bartolus, for example, is always ready to 
illustrate a legal point by appealing to his own experi- 
ence — to cases he has known or to opinions he has 
given both at Pisa and Perugia, the two cities most 
closely connected with his name, as at Florence, the 
small dependent cities near Perugia, such as Spoleto or 
Assisi, and elsewhere 1 . Similarly he will recall cases 

on Dig. Nov. Part i^ (xliii. 19. 1, § Quaesitum), p. 468 : " Hie est bonus 
textus et est argumtentum ad quaestionem. Equus qui currebat ad 
bravium per seipsum primo ivit, cum ragatius qui equum ducebat inde 
ceciderit, quod (sic) ille equus debet habere bravium. Breviter ego 
consuevi dicere sic, quod debemus advertere verba statuti, utrum 
dicunt, 'si quis cum equo primo venerit,' vel ' ei equitatori qui 
primo venerit,' et similia, et tunc non habeat bravium; vel dicant, 
' domino equi qui primo venerit debeatur bravium,' tunc equo veniente 
sine equitatore debeatur bravium." Horse-races took place in numbers 
of Italian cities at certain times of the year ; Dante refers to the famous 
Lent foot-race at Verona (Inf. xv. 122). Bartolus' decision is very 
curious and it would be interesting to know if such a rule ever actually 
held good. Then vide Comment, on Dig. Vet. Part n. (D. xn. 2. 30, 
§ In popularibus) , p. 95, § 4: " ...ut fuit de facto in civitate ista, facta 
fuit quaedam societas vel liga per cives hujus civitatis contra aliquos 
contra formam statutorum, quae liga adhuc durat...." Finally we 
may well notice the number of passages in which Bartolus refuses to 
consider a matter "quia pendet de facto." Vide e.g. Comment, on 
Dig. Nov. Part n. (D. l. 1. 6, § Filius), p. 648, § 3: "Non 
determino modo quia quaestio est in civitate Clusina, et forte ex- 
aminabitur in civitate ista." Cf. Comment, on Dig. Vet. Part i. 
(D. iv. 4. 38), p. 444, § 7. 

1 Comment, on Codex, Tres libri (C. x. 43. 1), p. 53: "Nota... 
quod quando quis subit onera sponte, debet protestari, ne prejudicet 
sibi vel suo privilegio: et sic feci, quando fuit imposita mihi prae- 
stantia, de qua potui excusari, tamen nolui me excusare : feci tamen 
scribere in catastro in lib. solutionum quod illud faciebam non animo 



I] INTRODUCTION 11 

in which other famous lawyers have appeared, or record 
incidents of their lives 1 . The ten volumes of his 
commentaries are a curious and little-worked mine, 
from which many sides of medieval history, besides that 
one which concerns us in this essay, might with little 
difficulty be enriched. 

praejudicandi mihi in privileges et pactis mini factis." Comment, 
on Infort. Part i. (D. xxvm. 5. 29), p. 338: "In civitate Pisana 
tempore conflictus civitatis Lucanae, quo tempore ibi actu legebam, 
factum fuit unum statutum, quod quicumque acceperit vexillum 
Florentinum haberet centum. Duo acceperunt nee apparebat quis 
primo, et dom. Franciscus Tigrinis erat de Ancianis et scripsit mihi, 
et ego respondi...." Comment, on Infort, Part n. (D. xxxm. 2. 30), 
p. 211, § 4: "Facit ad quaestionem in qua consului in civitate 
Spoleti." Comment, on Infort. Part i. (D. xxrx. 1. 1), p. 440, § 1 : " Et 
istam legem induxi semel ad pulchram quaestionem. Cavetur statutis 
civitatis Assissii...." Comment, on Infort. Part n. (D. xxxvin. 18. 2, 
§ Videndum), p. 550, § 3: " Et sic de facto consului in civitate 
Florentiae." Comment, on Infort. Part n. (D. xxxvr. 1. 4), p. 421: 
"Et sic de facto consului in quadam civitate imperii." On one 
occasion he says, Comment, on Infort. Part n. (D. xxxv, 2. 90), p. 408, 
§ 12: " Quaero de una quaestione quae me multum facit dubitare. 
Non habui de facto, sed hac nocte fui imaginatus." 

1 Vide e.g. Comment, on Infort. Part i. (D. xxvi. 2. 11), p. 132, 
§ 27: " Iste quaestio fuit semel in civitate ista pro tutela filiae 
Bemardini Comitis de Merciana et fuit comissa Bononiae quatuor 
doctoribus, scilicet Bic. de Mai. qui erat ibi tunc relegatus, Jac. de 
Bel., Jac. But. et Bay. de For. qui fuerunt discordes." Comment, on 
Big. Nov. Part n. (D. xlviii. 16. 1, § Suspecti), p. 521: "Istam 
opinionem Jac. Balduini Dynus tenuit semel, cum legeret pro Franc. 
Accursio...Do. Franc, in sequenti die legit... ubi resolvit eandem 
materiam meri et mixti imperii et tenuit glossam sui patris. Tunc 
quidam scholaris ivit ad do. Dynum, et do. Dynus incontinenti 
misit per scholas quod volebat disputare illam quaestionem et tenere 
opinionem Jac. Balduini et reprobare opinionem glossae ; et istam 
dissensionem audivi ore tenus a do. Cyno." Comment, on Big. Vet. 
Part ii. (D. xvn. 1. 26), p. 336, § 1: "Jo. Andreae fuit missus 
ambasiator a legato ad Papam ; dum reverteret fuit derobatus apud 
Papiam. Quaerebatur utrum deberet sibi restitui a legato. Convocati 
doctores dixerunt quod sic..." 



12 INTRODUCTION [CH. 

We may now turn to consider how Bartolus views 
the chief material of all his thought — that "civilis 
sapientia " of the five volumes, into which the Corpus 
Juris Civilis was divided by the medieval lawyers 1 , 

In his very remarkable Tractatus Testimoniorum 
he attempts to show 3 that "jus nostrum" — i.e. the 
Civil Law — may be called, according to different 
considerations, a Sapientia, a Scientia and an Ars 4 . 
He defines 5 Sapientia as "habitus speculationis, con- 
siderans causas altissimas"; and while this, he thinks, 
chiefly applies to theology or metaphysics, it may also 
be applied to the work of the jurist. "Est enim res 
sanctissima ista civilis sapientia, ut Ulpianus ait 6 . Ipsa 
enim causas altissimas considerat: quia est divinarum 

1 Vide Sermo in doctorat. do. Johannis de Saxoferrato, p. 508, 
circa fin. He compares them to the five miraculous loaves. The 
five volumes are, of course, the Dig. Vet.; Infortiatum; Dig. Nov.; 
Codex i.-ix. ; and the Volumen — Codex x.-xn. , Institutes, Authenticum. 
Most editions oi Bartolus are bound up in five volumes, the Consilia, 
Quaestiones and Tractatus being bound with the Comments, on Authen- 
ticum and Institutes; the Comment, on the Codex, Tres libri, being 
sometimes bound in with the Comments, on the other two parts of 
the Codex, sometimes separately with the index, which is found in 
most of the later complete editions. 

2 Pp. 434-53. 

3 Vide §§ 70-2, p. 444. He is considering the four cardinal moral 
virtues, first of which he names Prudentia (§ 68). Accordingly in 
§ 69 he proceeds to consider Prudentia — "ad quod declarandum, 
sciendum est quod Sapientia, Scientia et Prudentia differunt." He 
then returns to Prudentia in § 73 and ff., after those which here 
concern us. 

4 §72. 

5 § 70: "Est enim Sapientia habitus speculationis, considerans 
causas altissimas, et haec pertinet principaliter ad theologiam et 
metaphysicam, quae Deum et primas causas considerat et de prin- 
cipiis omnium aliarum scientiarum judicat, et etiam de ista ad 
juristas ; unde merito dicitur. Est enim res sanctissima, etc." 

6 Eef erring presumably to D. i. 1. 1 and D. i. 1. 10. 



I] INTRODUCTION 13 

atque humanarum rerum notitia et cognitio, judicat de 
principiis aliarum scientiarum; reprobat enim priucipia 
omnia, quae fidei catholicae repugnant, et hac conside- 
ratione bonus judex recte sapiens dicitur, et cum ad 
consilium sapientis recurritur vulgo de jurisperito in- 
telligitur." Scientia 1 is denned as "habitus specula- 
tionis demonstrativus ratione vera considerans causas 
inferiores." This especially applies to the natural 
sciences, but is also applied to "jus nostrum" by the 
Emperor in the first preface to the Digest 2 — "et merito, 
quia etiam causas inferiores considerat. Non solum 
enim divinarum, sed etiam humanarum est cognitio 3 , 
sed etiam de universalibus judicat. Jura enim non ad 
singulares personas, sed generaliter constituuntur et 
etiam de necessario se habentibus. Leges enim con- 
stringunt hominum vitas, et eis omnes obedire oportet,' 
maxime quia est inventio et donum Dei, ut ait Demos- 
thenes et retulit Martianus 4 . Nee praedictis obviat 
quia mutabilia sunt per Principis Imperium, vel alte- 
rius cui attinet, quia etiam quae jura naturalia sunt, 
mutabilia sunt divino Imperio vel alterius cui Deus 
concesserit, ut in miraculis declaratum est : nee tamen 
per hoc minus dicuntur necessariae se habere." Finally 
Ars 5 is defined as "habitus ratione naturae factivus"; 
this term is also applied to Jus by the Jurisconsultus, 
when he says, "Jus est ars boni et aequi 6 ." 

We ought especially to note how the term Sapientia 
is applied to the Jus Civile, along with theology and 
metaphysics, each a science "quae Deum et primas 

i § 71. 2 Vide D. Prima Const. § 1. 

3 Vide D. i. 1. 10. 4 Vide D. i. 3. 2. 

5 § 72. 

6 D. i. 1. 1, where Ulpian quotes the saying as of Celsus.. 



14 INTRODUCTION [CH. 

causas consiclerat et cle principiis aliarum scientiarum 
judicat." This places the Civil Law on a level with the 
highest branches of learning. Elsewhere Bartolus goes 
even further. In a speech made when his brother Bon- 
accursius was created a Doctor 1 , Bartolus is led to take 
into consideration the "essential goodness and perfection 
of this Civilis Sapientia 2 ." He finds that it manifestly 
excels all other sciences, in that, unlike them, it is 
"perfect in itself," needing the "suffrage" of no other 
science. The perfect philosopher must be a logician, 
the perfect physician a philosopher, the perfect canonist 
must first have this very Civilis Sapientia. But the 
Civilis Sapientia says of itself: "I sit a queen and am 
no widow and shall see no sorrow." It is truly a queen, 
for it rules, like a Prince, over good and bad, gives 
peace to whole provinces and scatters gifts with princely 
magnificence. All other sciences are only sciences in 
so far as they are recognised and supported by it, 
though he is bound here to except theology, to which, 
he confesses, even the Civilis Sapientia is inferior. 

1 The two speeches of Bartolus are very interesting. At the 
beginning of the one for Johannes cle Saxoferrato he says, " tres 
sermones me fecisse in hoc loco memini " (p. 507); but only two 
have survived. In the first two, he says, he had quoted authorities 
from the Civilis Sapientia and Scripture "permistim," in the third 
only from the Civilis Sapientia; so here in the fourth he will only 
refer to Scripture, " et quia hie pro quo sermo effunditur, est 
Johannes," he will refer only to S. John. 

2 Vide pp. 506-7. He takes as his text Accursius' own proud 
explanation of his name in the Gloss to D. xxxvi. 1. 63, ad verb. 
' ' conditio ":..." nomen meum, scilicet Accursium : quod est honestum 
nomen, dictum quia accurrit et suecurit contra tenebras juris civilis." 
Among the many titles of praise bestowed on Bartolus, and which 
most of his old biographers recount, is " Optimus auriga in hac civili 
sapientia." 



i] INTRODUCTION 15 

But he makes no other exception. As medicine with- 
out philosophy is "vidua," so Canon Law without the 
Jus Civile is "vidua et imperfecta scientia," while Civil 
Law "alterius adminiculo non eget, vidua non est, et 
vidua esse non potest." 

So exalted a view of the Civil Law was one which 
could hardly find general acceptance. The immense 
popularity of the study of Civil Law from the eleventh 
century onwards had raised up powerful enemies against 
it. The theologians were against it; and while the 
Canon Law had also, to some considerable extent, to face 
the hostility of the theologians, Civil Law had to bear 
the hostility of the canonists as well. 

Bartolus is well aware of this hostility. In the 
same speech 1 , after his praise of the Civil Law, he turns 
to the jurist. The Civil Law, as a science "in se 
perfecta," produces a son like itself — the son is of course 
the jurist. Of him may be said, in the psalmist's words: 
"The stone, which the builders refused, is become the 
head stone of the corner. This is the Lord's doing: 
it is marvellous in our eyes." He gives two examples. 
In Perugia the jurists are forbidden any share in the 
city's government; yet, he says, at the time of pro- 
cessions we see them precede all others. Again in the 
Roman Curia and Church the clergy are forbidden 
"hac civili sapientia imbui." "Tamen Romana curia 

1 P. 506: "Lapis reprobatus est per substantiam eujuslibet 
juristae, qui in hac civitate ad regimen per eorum statuta totaliter 
est remotus: tamen hie lapis, seu jurista, faetus est in caput anguli. 
Nam videtis juristas omnibus praecedere, et tempore processionum 
faciunt juristas, qui omnibus patrocinantur, praecedere et etiam in 
recognitionem dominii certum largiuntur: sic et curia Komana, sic et 
Eomana ecclesia hunc lapidem in clericis reprobat, vetando eos hac 
civili sapientia imbui; tamen, etc." 



16 INTRODUCTION [CH. 

in hac scientia obtinet principatum. Longe enim plures 
sunt ibi legistae, quam canonistae, quare hoc a Domino 
factum et est mirabile in oculis nostris." In another 

(speech 1 he says that though the clergy and religious 
may be forbidden to learn the Civil Law, yet without it 
there will be no justice in their courts. 

This is all the more remarkable in that Bartolus was, 
as we shall see later, in no sense hostile to Canon Law. 
Hostility there had been between the two sorts of 
lawyers. Cino, the master of Bartolus, was a bitter and 
contemptuous opponent of the canonists, so much so that 
canonists, as late as Panormitanus, note his hostility 
and reprove him. Bartolus himself wrote no works on 
Canon Law 2 , but he stood at the juncture of two 
epochs. The great lawyers who followed him were 
mostly doctors "in utroque jure." Old-fashioned theo- 
logians might still complain of the neglect of theology 
for law, but the epoch of hostility was over, at least so 
far as concerns the Civil and Canon Laws 3 . 

Bartolus thus thinks of the Civilis Sapientia as a 

1 P. 508: "...et licet Petrus dixerit, Domine non lavabis pedes 
meos in aeternum, tamen ei responsum est, Si non lavero te, non 
habebis partem mecum. Ita in proposito, licet statutum sit per 
Ecclesiam, ut jura civilia per religiosos et clericos in sacris non 
discantur, et sic pedes non laventur, tamen si haec scientia non 
lavabit, in curiis eorum justitia non erit...." 

2 The authenticity of Bartolus' Tractatus de Differentia inter Jus 
Canonicum et Civile is very doubtful. It is denied by Diplovatacius, 
who says that it is composed from a similar treatise by one Jacobus 
Albertus de Bononia, who lived at Verona, and nourished 1330 (vide 
Introductory note in Bale ed. p. 402). Stintzing also, in his Geschichte 
der popularen Literatur des romisch-kanonisclien Rechts in Deutschland, 
pp. 70-1, doubts its authenticity. 

3 Vide Marcel Fournier, " L'Eglise et le Droit Bomain au 
xin e siecle " (in Nouvelle Revue Historique de Droit Frangais et 
Etranger, 1890), p. 114. 



I] INTRODUCTION 17 

branch of study comparable to any in dignity and in- 
dependence and superior to all save theology. It need 
not, then, surprise us if we find that this Civilis Sapientia 
is thought a proper material for the solution of problems 
which to us would seem entirely foreign to law. 
Bartolus was far from being a man who knew only law. 
He had studied Hebrew 1 and Geometry 2 ; the Tractatus 
Testimoniorum alone would show that he was a student 
of Aquinas 3 ; he commented on a Canzone of Dante 4 

1 Vide Tract, de Insign. et Armis, § 29, p. 344. Bartolus records 
a dispute with his master as to the rationality of writing from right 
to left, as in Hebrew. 

2 Vide Tyberiadis, Proem, p. 363, where he names his friend 
Guido of Perugia, " magnus theologus universalis in omnibus qui 
meus fuerat et erat in geometria magister." Bartolus wrote this 
treatise when on a holiday in a villa by the Tiber. The river, 
its banks and its bed, suggested various legal problems to him, which 
he began to work out merely for his amusement, until warned in 
a vision to make them into a treatise. When he was in great doubt 
about certain ' ' figurae ' ' in the second book (there are wood-cut 
" figurae " in all the editions), Guido of Perugia chanced to visit 
him, and, by reason of the heavy rains, was compelled to spend the 
night with him: "cum ipso praedicta contuli et figuras secundi 
libri formare complevi et multa spiritualia gaudia ex collationibus 
spiritualibus secum habui," etc. 

3 With the passages quoted from the Tractatus Testimoniorum 
above may be compared Aquinas, Summa Theologica, n. 1, quaest. 55- 
62. 

4 Bartolus mentions Dante twice. On one occasion he refers to 
Dante's Monarchia — we shall consider the passage later in dealing 
with Bartolus' political theories. But even more interesting is his 
other mention of Dante, in his Comment, on Codex, Tres libri (C. xii. 
1. 1). Bartolus is discussing "Quid sit nobilitas?" and introduces 
" Dantes Allegeri de Florentia, poeta vulgaris laudabilis recolendae 
memoriae, qui circa hoc fecit unam cantilenam in vulgari, quae incipit 
' Le dolce rime d'amor.'" He disagrees with Dante's doctrine of 
nobility, but does so reverently — " salva reverentia tanti poetae." 
However incongruous Bartolus' legal criticisms of the Canzone may 
seem to us, we may well remember Dante's own analysis of his poems, 

w. 2 



18 INTRODUCTION [CH. 

and wrote a treatise on Heraldry 1 . But in all his 
studies and all his interests the Civilis Sapientia 
was the medium through which they were approached. 
This is not sufficiently explained by saying that law 
was to Bartolus a "passion rather than a pursuit 2 " — 
though perhaps true in itself. It must rather be ex- 
plained by the conception of the Civilis Sapientia as a 
branch of learning, which considers not only the "altis- 
simas causas," but "causas inferiores" as well, and 
which, as only theology besides, is complete in itself, 
needing no other "adminiculum." Someone once asked 

both in the Vita Nuova and the Convivio (the Canzone in question is 
in the Convivio, Trattatoiv.). Bartolus' Eepetitio on this Law (C. in. 
1. 1) is not found in all editions — not e.g. in the Turin ed. of 1577. 
Both his references to Dante were published separately by the great 
Dante scholar, Witte, in 1861, on whose reprint there are a few pages 
of just criticism by Negroni, " Dante Allighieri e Bartolo di Sassofer- 
rato " (in Rivista di Cose Dantesche, and published separately, 1890). 
Witte 's reprint may also be found in Bernabei, " Bartolo da Sassofer- 
rato e la Scienza delle Legge," Documenti, p. 168 and ff. 

1 Tract.. de Insign. et Armis. As a treatise on heraldry we should 
nowadays think it very insufficient — in fact it has nothing about what 
we should call the "Laws of Heraldry." On the other hand the 
opening words are significant of Bartolus' whole intellectual stand- 
point : ' ' Horum gratia de insigniis et armis quae quis in vexillis et 
clypeis portat videamus, et primo an hoc sit licitum, et eo casu quo 
est licitum, qualiter sint pingenda et portanda." Heraldry, no less 
than the Tiber, suggests legal problems. Having decided in what 
cases it is lawful — and Bartolus allows anyone to adopt arms, pro- 
vided they do not already belong to someone else — Bartolus gives 
some very fanciful explanations of the heraldic colours, and there 
can be no doubt that Rabelais in Book i. chaps. 9 and 19, is laughing 
at this treatise ; especially since he mentions a treatise of Laurentius 
Valla, attacking Bartolus on the same subject. 

2 Figgis, " Bartolus and European Political Ideas " (in Transactions 
of Royal Hist. Society, vol. xix. 1905), p. 151. But these pp. 151-6 of 
Dr Figgis' paper, as a whole, give an admirable picture of Bartolus' 
intellectual characteristics. 



I] INTRODUCTION 19 

Johnson whether Lord Coke was not a "mere lawyer." 
Johnson feared he was — but thought that Lord Coke 
"would have taken it very ill if you had told him so." 
To Bartolus the phrase a mere lawyer would have 
meant little. Had he been accused of being one, he 
would have answered that he was indeed "minimus 
inter legum doctores 1 "; but that, apart from theology, 
law was complete and sufficient in itself — he might 
have pointed to his library of 34 books of theology 
and 30 of law 2 , as containing the sum total of all 
wisdom. 

If then, in the matter that concerns us particularly, 
we. say that Bartolus was not a political thinker, we 
must remember that this distinction between law and 
politics is rather ours than his. His Civilis Sapientia 
is a term that can include far more than our term Law. 
The field of action which Bartolus sketches out for the 
jurist is very significant. In my Father's house, that 
is to say in this Civilis Sapientia, there are, he says 3 , 
"many mansions." "Quidam enim ad legendum in civi- 
tatibus regiis assumuntur, quidam ad assidendum in 
locis insignibus praeponuntur, quidam ad advocandum 
in curiis principum et regiis attrahuntur, alii ad consu- 
lendum in cameris assidue requiruntur, alii ad con- 
silium principum assumuntur. Hi enim sunt quibus 
respublica regenda committitur." Similarly, in his 
treatise Be Regimine Civitatis, when he is about to 
discuss the best form of government, he says — "Haec 
investigatio necessaria est juristis: quoniam domini 

1 Bartolus usually signs his " Repetitiones " thus. 

2 Savigny, p. 152, note e, gives these numbers on the authority of 
Diplovatacius. 

3 Sermo in doct. do. Johannis de Saxoferrato, p. 508. 

2—2 



20 INTRODUCTION [CH. I 

universales, dum de reformatione civitatis tractant, 
vel juristas consultant, vel eis committunt; vel cum 
ipsi assident apud eos, de regimine civitatis querela 
proponitur 1 ." 

With this conception of the lawyer's task in mind, 
we may now turn to the political theories of Bartolus. 
Those theories, we must remember, are the "disjecta 
membra" of a system, scattered up and down his legal 
commentaries. Our task cannot be analysis, but rather 
the reconstruction of such a system of thought, as 
we may suppose existed in the mind of Bartolus. For 
this reason we must especially endeavour to avoid an 
arbitrary or incomplete choice of topics, on which to 
examine his political theories. 

1 Tract, de Reg. Civ. § 6, p. 418. 

It is interesting to compare with these views of the Jurist's field of 
action the following passage from Bodin, in the introductory (Latin) 
letter to his De la Republique. Bodin, we may remember, was a 
Bartolist, in days when lawyers were divided into two very hostile 
camps — Bartolists and Novitii: "Juris consult!... peti consueverunt 
qui quidem respublicas instituere, fines imperiorum regere, causas 
regum disceptare, populorum mores sanare, principum foedera sancire, 
civium lites et controversias dirimere, divinas humanasque leges ad 
hominum inter homines societatem aecommodare didicerunt." 



CHAPTER II 

THE POLITICAL THEORIES OF BARTOLUS 

"Magna et ardua sunt et fundamentum totius juris 
nostri," says Albericus de Rosate 1 , a contemporary of 
Bartolus, discussing questions connected with the ex- 
tent and character of the Empire, in his commentary 
on the Law Cunctos Populos. The opening words of 
this first law of Justinian's Code — " Cunctos populos 
quos clementiae nostrae regit temperamentum " — invited 
discussion on the universal lordship of the Emperor. 
These words " Cunctos populos quos," says Bartolus 2 , 
imply that there are certain peoples who are not " sub 

1 Vide Comment, on Codex, Part i. (C. i. 1. 1), p. 6 verso and ff. 
The whole of this long commentary is well worth attention — ' ' Quid 
ergo," he asks in § 11, "sub praedictis pro veritate tenebimus? Quia 
magna et ardua sunt et fundamentum totius juris nostri, et non 
reperi tacta per alios, secundum mei paucitatem ingenii subjiciam 
quod verum fore crediderim correctione cujuslibet melius sententientis, 
altius exordiendo materiam et distinguendo tempora et originem et 
progressum imperii. " It is to be noted that he refers both to John of 
Paris' treatise De Regia et Papali Potestate and to Dante's Monarchia 
— and again in his Commentary on Codex, Part n. (C. vn. 37. 3), 
p. 108. The lawyers show a fairly general acquaintance with Dante's 
Monarchia. The canonist Zabarella, in his Comment, on the Decretal 
Venerabilem, similarly refers to it, as well as to the Defensor Pads of 
Marsiglio of Padua — not "is qui late de medicinis scribit," he adds. 
This is interesting, in view of the fact that it is generally stated that 
Marsiglio had studied medicine. 

2 Comment, on Codex, Part i. (C. i. 1. 1), p. 7. 



22 THE EMPIRE [CH. 

Imperio," while elsewhere 1 in the Law Books the 
Emperor is said to be " dominus totius mundi." 
Bartolus solves the difficulty by offering two explana- 
tions of the word " regit 2 ." Either the Emperor meant I 
that he ruled all peoples de jure or de facto. In the | 
latter case, the relative " quos " must be taken " restric- 
tive," since de facto there are some who do not obey 
the Emperor. But Bartolus considers that the former 
meaning was in the Emperor's mind, and so the relative 
must be taken "declarative." This distinction between 
right and fact — the acceptance of the Imperial claims 
in right, with the accompanying recognition of their 
invalidity in fact — is at the basis of all the political 
theories of Bartolus. But if de jure the Emperor's 
position as lord of the whole world is unassailable, this 
does not imply that all other " dominium " is merely de 
facto. The Emperor is "dominus totius mundi vere," but 
others can be domini " particulariter " ; the world con- 
sidered universally is the Emperor's, but "singulae res" 
are not necessarily his 3 . Again he discusses the question 
in his Commentary on the first preface to the Digest 4 

1 Bartolus refers, for an example, to D. xiv. 2. 9 — "Eespondit 
Antoninus Eudaemoni, ' Ego quidem mundi dominus etc.' " 

2 " Aut verbum 'regit,' hie positum intelligitur prout de jure est, 
et tunc de jure regit (i.e., the Emperor) omnes populos; et sic relati- 
vum ponitur declarative — ' quos,' scilicet ' omnes.' Et hoc puto fuisse 
de mente Imperatoris. Aut vis intelligere prout de facto est : et tunc 
quia quidam de facto non obediunt, et sic talis qualitas non competit 
omnibus de genere, tunc relativum ponitur restrictive." 

3 Vide Comment, on Dig. Vet. Part i. (D. vi. 1. 1, § Per hanc 
autem), p. 553: "Ego dico quod Imperator est dominus totius mundi 
vere. Nee obstat quod alii sunt domini particulariter, quia mundus 
est universitas quaedam ; unde potest quis habere dictam universita- 
tem, licet singulae res non sint suae." 

4 Comment, on Dig. Vet. Part i. (Prima Constitutio, § Omnem), p. 9, 



IlJ THE EMPIRE 23 

(De ratione et methodo juris docendi). He recalls the 
controversy between Bulgarus and Martinus, the suc- 
cessors of Irnerius, the two most famous of the " four 
Doctors," and records that the Gloss decides in favour 
of Bulgarus, who held that the Emperor was not lord of 
the world in so far as that implies a universal ownership 1 . 
Thus, Bartolus continues, "ratione protectionis et juris- 
dictionis," the Emperor is lord of the world, because he 
is bound to defend the whole world; and in the same 
way " ratione protectionis vel administrationis " anyone 
is called " dominus " of that which he protects or ad- 
ministers. But, on the other hand, in his Commentary 
on the Constitution of the Emperor Henry VII, " Ad 
Reprimendum 2 ," on which Bartolus commented near 
§ 3: "Quaerit glossa...numquid secundum quod Imperator dicitur 
habere dominium universalis jurisdictionis, ita et particularium rerum. 
Quae quaestio fuit antiquitus agitata inter Martinum et Bulgarum... 
Glossa hie determinat pro opinione Bulgari, quod Imperator non sit 
dominus rerum particularium. Ad leges contrarias. . .respondetur quod 
ratione protectionis et jurisdictionis Imperator dicitur dominus mundi, 
quia tenetur totum mundum defendere et protegere....Item probatur 
quia ego video quod ratione protectionis vel administrationis dicitur 
quis esse dominus.... Et haec opinio est vera." Cf. also Comment, on 
Codex, Tres libri (C. xi. 49. 2), p. 104, § 2: "Omnia sunt Principis 
ad jurisdictionem et universale dominium, sed non quantum ad 
particulare." 

1 Savigny, Geschichte des romischen Eechts im Mittelalter, vol. iv. 
pp. 180-3, records this controversy and gives the evidence for the 
well-known story, how Martinus for his answer received a horse from 
the Emperor Frederick I, Bulgarus nothing — "Amisi equum, quia 
dixi aequum, quod non fuit aequum." 

2 Comment, on Constitut. ad Reprimendum (ad verb. Totius Orbis), 
p. 262, § 8: "Imperator recte dicitur dominus mundi, scilicet univer- 
salis, licet singulares sint domini praediorum suorum. Unde a 
possessoribus ipse posset vendicare mundum, nee est opus quod omnia 
sint sua quo ad protectionem etc. ut notatur in prima constitutione 
Digestorum (in principio), quia imo sunt (i.e. omnia) ipsius, si 
universaliter considerentur. ' ' 






24 THE EMPIRE [CH. 

the end of his life, in honour of Henry's grandson, 
Charles IV, he maintains that it is unnecessary to say 
that the Emperor is lord of everything " quo ad protec- 
tionem," since everything is really his, taking everything 
as a part of the " universitas " of the world, not in its 
particular aspect, as a separate part of this whole. Thus 
the Emperor is " rex universalis," lord of the world, but 
not proprietor of everything in the world. And therefore 
as "rex universalis" he is above all other powers; for the 
Empire is of divine origin, and so goes by election, like 
ecclesiastical offices, while the " reges particulares " are 
kings by succession, which is less " divine 1 ." Men owe 
the Emperor all loyalty and must honour him with all 
their hearts; for he is "Deus in terris 2 ," and "respectu 
officii," which must have no end, he may be called 
" sempiternus 3 ." To dispute his power is sacrilege 4 ; to 

1 Tractatus de Reg. Civitatis, § 23, p. 420: "Omnis rex aut 
mediate aut immediate a Deo eligitur, vel ab electoribus inspirante 
Deo....Et ex hoc nota quod regimen quod est per electionem est magis 
divinum quam illud quod est per successionem. Ideo in rebus 
ecclesiasticis successio omnino detestatur....Et ideo electio Principis, 
qui est rex universalis, fit per electionem praelatorum et principum, 
non autem vadit per successionem.... Hoc enim Imperium Deus de 
coelo constituit.... Reges vero particulares sunt magis ex constitutione 
hominum." Lucas de Penna, Comment, on Codex, Tres libri (C. xi. 
71. 1), p. 637, § 1, says however — "Rex quoque plus juris habet in 
regno, quam Imperator in Imperio, nam ex successione est, ut vivente 
patre filius ejus rex dicitur...et Imperator ex electione." 

2 Comment, on Constit. ad Reprimendum (ad verb. Fidelitatis), 
p. 262, § 5: "Iota fidelitas debet Principi. Est enim Deus in terris 
...Et ibi nota de Deo scriptum est ' Diliges Dominum Deum tuum ex 
toto corde tuo, et ex tota mente tua, et ex omnibus viribus tuis.' " 

3 Comment, on Codex, Tres libri (C. xi. 9. 2), p. 79, § 1: ".Im- 
perator respectu officii, quod non debet habere finem, potest dici 
sempiternus." He adds that it is wrong "to adore" the Emperor, 
unless "pro quadam exhibitione reverentiae." 

4 Tractatus de Insignibus et Armis, § 3, p. 341: "De Principis 
enim potestate disputare sacrilegium est." 



II] THE EMPIRE 25 

deny that he is " dominum et monarcham totius orbis " 
(de jure of course) is perhaps heresy 1 . 

Grotius 2 was very severe on Bartolus for this last 
expression, though not quite just. It comes from one 
of the most interesting and important passages in 
his works. He is discussing — " Quis dicatur populus 
Romanus." Dismissing the opinion of the Gloss, 
which divides mankind into five "genera gentium," 
he maintains that there are but two " principaliter," 
the Populus Romanus and the Populi extranei. As to 
the Populus Romanus, the Gloss, he continues, says that 
it stands for the whole Roman Empire (accipitur pro 
toto Imperio Romano). " Sed diceres tu, cum modicae 
gentes sint, qui Romano Imperio obediant, ergo videtur 
quod sit parvus populus Romanus." To this Bartolus 
answers by an analysis of the various "gentes" who made 
up the western European world of his time. " Quaedam 
sunt gentes quae Imperio Romano obediunt, et istae sine 
dubio sunt de populo Romano." Then there are those 

1 Comment, on Dig. Nov. Part n. (D. xlix. 15. 24), p. 637. 

2 Grotius refers to the " stultum titulum" — "quern quidam tri- 
buunt Imperatori Eomano, quasi ipse etiam in remotissimos et 
incognitos hactenus populos jus imperandi habeat, nisi, Jurisconsul- 
torum diu princeps habitus, Bartolus haereticum ausus esset pronun- 
ciare qui id negat." Vide De Jure Belli ac Pads, p. 348. Bodin 
pretends that this is Bartolus' return to the Emperor Charles IV, " qui 
annoblist Bartol, et luy donna le lyon de Guelles en champ d'argent, 
et puissance d'ottroyer benefice d'aage, pour luy et pour les siens qui 
feroient profession d'enseigner le droit : et en recognoissance d'un tel 
bienfait, Bartol a laisse par escrit, que tous ceux-la sont heretiques, 
qui ne croient pas que l'Empereur soit seigneur de tout le monde, ce 
qui ne merite point de response etc." (Vide De la Eepublique, 
pp. 138-9.) There is no need to give this explanation — nor is there 
any evidence to show that Bartolus wrote this passage after his 
embassy to Charles IV, which in fact took place not two years before 
his death. 






26 THE EMPIRE [CHj 

"gentes" who do not obey in everything, but do in certain 
points — "ut quia vivunt secundum legem populi Romani, 
et Imperatorem Romanorum esse dominum omnium fa- 
tentur, ut sunt civitates Tusciae, Lombardiae et similes; 
et isti etiam sunt de populo Romano. Nam cum populus 
Romanus in eis exerceat jurisdictionem in aliquo articulo, 
totam jurisdictionem retinet." Then there are those 
who, like the Venetians, obey the Emperor in no point 
— " nee istis legibus," claiming exemption by concession 
of the Emperor, " et isti similiter sunt de populo 
Romano," from the very fact that they hold their 
exemption on the basis of concession from the Roman 
Empire. Then there are those who do not obey the 
Emperor, " tamen asserunt se habere libertatem ab ipso 
ex contractu aliquo, ut provinciae, quae tenentur ab 
Ecclesia Romana, quae fuerunt donatae ab Imperatore 
Constantino Ecclesiae Romanae ; posito pro constanti, 
quod donatio tenuerit, quodque revocari non possit, 
adhuc dico istos de populo Romano esse. Nam Ecclesia 
Romana exercet illas in terras jurisdictionem quae erat 
Imperio Romano et istud fatetur ; non ergo desinunt 
esse cle populo Romano, sed administratio istarum 
provinciarum est alteri concessa. Vide in simili, juris- 
dictio in clericos est concessa totaliter Papae; desinuntne 
propter hoc clerici esse cives Romani ? Certe non, quod 
apparet, quia retinetur jus succedencli." Finally the 
kings of France, England, etc., and presumably their 
subjects too, are also a part of the Roman people — " si 
enim fatentur ipsum (i.e. the Emperor) esse dominum 
universalem, licet ab illo universali dominio se subtra- 
hant ex privilegio vel ex prescriptione vel consimili, 
non desinunt esse cives Romani per ea quae dicta sunt. 



II] THE EMPIRE 27 

Et secundum hoc quasi omnes gentes qui obediunt 
sanctae matri Ecclesiae sunt de populo Romano. Et 
forte," he continues, " si quis diceret dominum Impera- 
torem non esse dominum et monarcham totius orbis, 
esset haereticus. Quia diceret contra determinationem 
Ecclesiae, contra textum S. Evangelii, dum dicit, ' Exivit 
edictum a Caesare Augusto, ut describeret universus 
orbis,' ut habes Luc. II. Ita etiam recognovit Christus 
Imperatorem ut dominum." 

The whole passage is very significant and we shall 
return to it more than once in the following pages. 
What for the moment we have to observe is that 
Bartolus does not make independence of the Emperor 
mean exclusion from the Populus Romanus or " totum 
Imperium Romanum." That independence, if it is 
de jure, must be, he argues, by concession from the 
Emperor ; and, therefore, those who base their indepen- 
dence on such concession, must recognise the Emperor 
as de jure "dominus omnium," more especially since 
not to do so is contrary to the teaching of the Church, 
the Gospel and the example of Christ. This may be 
a not very solid line of argument — but the conclusion 
is of the greatest importance. It means that the con- 
ception of all western Europe as forming one community 
can survive, even when the local independence of the 
units, who compose it, is allowed : we shall return to 
this point again later. We see, to begin with, that the 
Populus Romanus is not a " small people." 

But Bartolus has not, as Grotius accuses him of 
doing, made any claim for the Emperor "in remotis- 
simos et incognitos hactenus populos." The truth is 
that he does not mention any very remote and unknown 



> 



28 THE EMPIRE [CH. 

peoples, whether within the Populus Romanus or the 
Populi extranei. He maintains that within the Populus 
Romanus are all who obey the Roman Church, and he 
shows that all these, as obedient to the Roman Church 
and as independent by concession from the Emperor, 
must recognise the Emperor as de jure " dominus 
omnium." The Populi extranei are those who do not 
recognise the Emperor as de jure lord of the world — 
" Graeci, qui non credunt Imperatorem Romanum esse 
dominum universalem, sed dicunt Imperatorem Con- 
stantinopolitanum esse dominum totius mundi. Item 
Tartari, qui dicunt Grantchan esse dominum uni- 
versalem. Et Saraceni, qui dicunt dominum eorum 
esse dominum totius orbis. Idem in Judaeis." All 
these, we must note, were actually outside the western 
Church. Bartolus may have thought that they ought 
to recognise the western Emperor as lord of the world 
— but he does not say so. What he does do is to make 
that recognition the test of inclusion within the Populus 
Romanus, which, he argues, is therefore conterminous 
with western Christendom. The line of argument, we 
may repeat, is weak perhaps: but the conclusion is clear 
and very important. 

But if the Emperor was still lord of the Roman people, 
it could not be denied that he was a German, seldom in 
Italy and powerless in Rome itself. Bartolus' patron, 
the Emperor Charles IV, had come into Italy to be 
crowned, under a solemn promise to the Pope to stay 
no more than one night in his capital city of Rome — 
a promise Charles had religiously kept. That the Roman 
Emperor was in fact a stranger had to be both recog- 
nised and accounted for. 



II] THE EMPIRE 29 

" Imperator est modo in Alemannia et est de jure 
superior 1 ," says Bartolus, discussing reprisals. Later 
we shall see him recognise the German princes as the 
Electors to the Roman Empire ; and in his Tractatus 
de Regimine Civitatis 2 he discusses how it is that the 
Empire has been translated to the Germans. All 
Christians are our brothers, he suggests. The Empire 
could not have been transferred to a Saracen or other 
infidel ; for this reason examination is necessary before 
the Emperor's coronation. This explanation is fully 
in accord with his former definition of the Populus 
Romanus. Rome is the " communis patria 3 ," in which 
national distinctions disappear. Yet this explanation 

1 Tractatus Repraesalium, Quaestio n. 5, § 11, p. 331. The 
phrase "Imperator venit in Italiam," used more than once by 
Bartolus, shows how men realise that the Emperor is away in 
Germany, and that it is exceptional for him to come to Italy. Vide 
e.g. Comment, on Codex, Part n. (C. vi. 25. 6), p. 56; or on Codex, 
Tres libri (C. x. 1. 4), p. 7, § 1: "Imperator venit in Italiam et 
reperit quandam civitatem, quae erat contra Imperium etc." 

2 Tractatus de Regimine Civitatis, §§ 24-5, p. 420: "Nota quod 
periculosum est habere regem alterius gentis. Sed dices ergo: quo- 
modo per Ecclesiam translatum est Imperium in Germanos, id est 
Teutonicos...Eespondeo, omnes Christiani dicuntur fratres nostri...In 
hominem vero Saracenum, paganum vel infidelem non possit trans- 
ferri, et ideo sequitur 'Nee poteris alterius gentis Eegem habere.' Et 
propter hoc necessaria est examinatio ejus qui coronandus est Impera- 
tor. Vel expone ilia verba secundum Augustinum...' non poteris ' i.e. 
'non debebis per regem,' cum alterius regnum non ita fideliter con- 
servatur. Et ideo postquam etc." as above. 

3 Vide Comment, on Dig. Nov. Part n. (D. l. 1. 33), p. 653: 
"Quaero, ad quid dicitur communis patria Eoma? Respondeo, quia 
quilibet potest ibi conveniri...Praeterea quilibet de Imperio Romano 
est ibi civis." Cf. Comment, on Infort. Part i. (D. xxvn. 1. 7, 
§ Romae), p. 199: "Dicit Jac. de Arena quod ille qui est in curia 
Romana debet habere fructus sui beneficii prout si esset in patria sua, 
quia Roma est communis patria." 



30 THE EMPIRE [CH. 

does not altogether satisfy Bartolus. He is after all an 
Italian, and we shall see in later pages of this essay 
how closely, in the fourteenth century, claims to the 
Empire were connected with the growing spirit of 
nationalism, alike in Italy, France and Germany. 
Bartolus, no less than Dante or Petrarch, must some- 
times think of the Empire as rightly and historically 
an Italian possession. Within the Populus Romanus 
we have seen many "gentes," and he owns that the 
" Imperium Romanum postquam fuit ab Italicis se- 
paratum semper decrevit in oculis nostris ; hoc tamen," 
he adds, " absque Dei judicio occulto factum non fuit." 

Beside the fact that the Emperor was away in 
Germany, the medieval civilian had to consider another 
point of contrast between the Roman Empire of his 
own day and the old Empire of his Law Books. The 
medieval Emperor only received his title after the 
Imperial coronation at Rome ; before that he was Rex 
Romanorum 1 . The title came into use in the eleventh 
century ; up till then the uncrowned Emperors had 
styled themselves merely kings of the Franks, Saxons, 
etc. 2 The question which the medieval lawyer had 
especially to consider was, whether the Rex Romanorum 
could exercise Imperial authority and use Imperial 
rights before his coronation, or whether these also 

1 Vide Comment, on Dig. Vet. Part i. (Prima Constitutio), p. 8, 
§ 15: "Quaero quando quis dicatur Imperator esse. Et dico quod 
ante coronationem non est Imperator sed Eex Romanorum... Sed post 
eoronationem dicitur Imperator sive Princeps...nam Princeps et Im- 
perator sunt idem." Cf. Comment, on Infort. Part i. (D. xxrx. 1. 43), 
p. 448, §§ 1-2: "Habes quod ex sola electione non est quis miles nee 
aliquam dignitatem consequitur ex electione sola... Item nee Imperator 
efficitur Imperator, nisi suscepta infula." 

2 Vide Bryce, Holy Roman Empire, Note C, pp. 530-1. 



Jl] THE EMPIRE 31 

depended, like the Imperial title, on the coronation at 
Rome. Bartolus maintains decidedly that he can. The 
Rex Romanorum is "generalis dominus 1 ." He points 
to the Constitution " Ad Reprimendum," on which he 
is commenting, and which deals with High Treason, 
whether against the Imperator or Rex Romanorum. 
Moreover he had himself seen letters of Charles IV — 
" quae literae sunt Perusii sub bulla aurea " — quashing 
" omnes et singulas sententias processus et condemna- 
tiones, mulctas et sorbanitationes per quoscumque divos 
Romanorum Imperatores et ife#es...latas seu promul- 
gatas," and other letters granting various privileges 
"tamdiu, quamdiu per successorem nostrum, Regem 
Romanorum seu Imperator em, non fuerit revocatum." 
Bartolus points to these as a decisive answer to the 

1 Vide his Comment, on the Constitutio ad Reprimendum (ad verb. 
Eeges), p. 264: "Nota diligenter quod ante coronationem habetur 
(i.e. the rex Romanorum) generalis dominus. Si enim esset privata 
persona, contra eum facientes non inciderent in legem Juliam Majes- 
tatis, ut hie patet. Et sic potest administrare et dare privilegia..,et 
sic cessat disputatio Jac. de Arena quam posuit Cynus in lege Bene a 
Zenone... Potest etiam facere condemnationes : ut patet ex Uteris 
domini Caroli Imperatoris, concessis communi Perusii, cum ego tunc 
apud ipsum legatione fungerer, ubi inter cetera sic ait : ' Omnes et 
singulas sententias processus et condemnationes, mulctas et sorbanita- 
tiones per quoscumque divos Romanorum Imperatores et Reges, 
praedecessores nostros, contra vos et singulas civitates et communis 
Perusii personas latas seu promulgatas tollimus et relaxamus.' Potest 
etiam ante coronationem concessiones aliorum Imperatorum tollere et 
revocare, quod patet ex aliis Uteris ejusdem Imperatoris, ubi inter 
cetera concessit quaedam, et addit, 'tamdiu quamdiu per successorem 
nostrum, Regem Romanorum seu Imperatorem, non fuerit revocatum,' 
quae literae sunt Perusii sub bulla aurea. Et praedicta vera, post- 
quam persona est electa in Romanorum regem et per sedem Apostoli- 
cam f uerit approbata. Aliter autem videtur tenere Glossa in c. i. de 
jurejur. in Clementinis, quod etiam electi in discordia possunt adminis- 
trare." 



32 THE EMPIRE [CH. 

question. In them Rex and Imperator Romanorum 
are put on the same level, and they are of course 
especially authoritative as the words of Emperors them- 
selves. Discussion is unnecessary — "sic cessat disputatio 
Jac. de Arena quam posuit Cynus in lege Bene a 
Zenone." In his own Commentary on this law 1 
Bartolus refers again to Cino's reproduction of Jacobus 
de Arena's solution of the question, as also to Durandus 
(Speculator), but here too he himself seems to think 
the discussion unnecessary; he adds nothing of his own, 
except that "de hoc non est nostrum disputare, sed 
quod Imperator velit, dicit." 

But though Bartolus says "cessat disputatio Ja- 
cobi de Arena 2 ," it is well worth turning to this very 

1 Comment, on Codex, Part n. (C. vn. 37. 3), p. 168. Cf. Comment, 
on Authenticum (Collatio vi. Constitutio quae de dignitatibus, § Quid- 
quid), p. 92, § 8, where he again refers to the disputatio of Jac. de 
Arena, "quam disputationem refert Cynus," and refers to his own 
commentary on C. xn. 3. 5 (p. 123), where however he does not 
touch the real question at issue (i.e. the rights of the Eex Roma- 
norum after election), but says generally : " Nota...quod videatur posse 
dici, quod ex sola electione jus non tribuatur, sed tunc cum electionis 
literae praesentantur, " which is hardly very pertinent. 

2 Hugelmann, Die deutsclie Konigswahl im Corpus Juris Canonici, 
does not identify the "Jaco. de Are.," mentioned both by Bartolus 
and by Johannes Andreae (in the Gloss to the Clementine Decretals) 
as the author of the Disputatio, which Cino "ad literam posuit." 
Vide p. 123, n. 1: "Wer mit der Abkiirzung Jaco. de Are. gemeint 
ist, vermochte ich bisher nicht mit Sicherheit festzustellen. Ich 
vermute darunter Jacobus de Ardizone." In the only edition of 
Jacobus de Arena, which I have seen, the Disputatio is not to be 
found; I have not succeeded in seeing any edition of Jacobus de 
Ardizone. But in the edition of Cino, which I have used (Frankfort, 
1597), the author of the Disputatio is given as "Jacobus de Arena," 
in full. In the editions of Bartolus we often find "Jac. de Are.," 
"Jac. de Aret.," "Jac. de Aren." each within a few lines of the 
others. Failing decisive evidence to the contrary, it seems more 
natural to refer the Disputatio to the more famous Jacobus de Arena. 



II] THE EMPIRE 33 

interesting discussion, as reproduced "de verbo ad 
verbum" by Cino 1 . After a long argument it is decided 
that the Hex Romanorum obtains "potestatem et juris- 
dictionem imperialem " immediately after election, and is 
not dependent for them on the Imperial coronation. The 
coronation has spiritual effects — " dona spiritualia, sive 
dona Spirit us Sancti et gratiam consequitur Imperator." 
Jacobus de Arena and Cino thus answer a difficulty 
which would naturally suggest itself — if the Rex 
Romanorum has all the Imperial rights and juris- 
diction before his coronation, is the coronation itself 
necessary, or at any rate does it do more than give 
a mere change of title ? Such an idea, said Albericus 
de Rosate 2 , " nemo sanae mentis approbabit." But 
Bartolus leaves the point unquestioned. He notes that 
the Emperor is not Emperor " nisi suscepta infula," but 
at the same time, as regards the exercise of Imperial 
authority, he makes the Rex Romanorum in no way 
inferior to the crowned Imperator. 

We may notice one other point of interest. Bartolus 
makes the Papal approbation a necessary preliminary to 
the exercise of Imperial authority by the Rex Roma- 
norum — the mere election is not enough. Here he 
differs not only, as we should expect, from staunch 
Imperialists like Cino, but it would seem even from 
some of the canonists. Bartolus himself has noted that 
the Gloss to the Clementine Decretals maintains that 
" etiam electi in discordia possunt administrare." Else- 
where he has referred to Durandus, who says that the 
Emperor " ex sola principum electione etiam ante 

1 Comment, on Codex, Part n. (C. vn. 37. 3), p. 446. 

2 Comment, on Codex, Part i. (C. i. 1. 1), p. 108 verso. 
W. 3 



34 THE EMPIRE [CH. 

confirmationem aliquam verus est Imperator et con- 
sequitur jus administrandi 1 ." Bartolus clearly does 
maintain the necessity of Papal approbation — we shall 
find Bartolus a very shy thinker wherever the Papacy 
is concerned. The question of Papal approbation was 
one of great importance. The necessity of going to 
Rome itself for the Imperial coronation made it often 
impossible for the coronation to follow immediately, or 
even soon, after the election in Germany. To make 
the exercise of Imperial authority dependent upon the 
coronation was, at least for everyone but the Pope, 
highly undesirable. Later the title "Imperator electus" 
superseded that of " rex Romanorum," and as, in 
ordinary usage, the " electus " was left out, those who 
were never crowned at Rome received the full Imperial 
titles. Thus the really important question was the 
necessity of Papal approbation. In Bartolus' own day 
its importance is illustrated by the history of the Diet 
of Rense. Bartolus, however, does no more than affirm 
its necessity, referring us at the same time to contrary 
opinions. He himself offers no discussion. 

We have seen above that Bartolus contrasts the 
elective " rex universalis " with the hereditary " reges 
particulares." Election is a more divine method of 

1 Speculum Juris, n. Partic. i., De Rescript. Praesentat., § Ratione, 
p. 71, § 18: "Et sunt hie argumenta quod donatio facta Ecclesiae 
Romanae per dominum Rodolphum regem Alemaniae, nondum coro- 
natum in Imperatorem, non teneat....Arguitur tamen quod valeat 
rescriptum et praedicta donatio.... Imperator enim ex sola principum 
electione etiam ante confirmationem aliquam verus est Imperator et 
consequitur jus administrandi." However lie goes on to maintain 
that the donation was really a restitution of lands which rightly 
belonged to the Church and had been held back by "principes 
tyranni." 



II] THE EMPIRE 35 

appointment than succession, and therefore the Princeps 
is elected by the princes and prelates " inspirante Deo." 
The conception of the Imperium as " a Deo " went back 
to the Christianised Empire 1 , but it never excluded the 
conception of the Imperium as a delegation from the 
people, and two famous texts invited the medieval 
lawyer to consider the people as the source of Imperial 
authority. But if the Law Books pronounced the Empire 
a delegation, by means of the Lex Regia, from the 
Roman people, none the less the electors to the Empire 
were now the German princes. So far indeed as the 
" populus Romanus " stood for the " whole Roman 
Empire," the electors might be considered as represent- 
ing the Populus Romanus 2 . But we have to remember 
that the medieval lawyers applied the term " populus 
Romanus " not only to the whole Empire, but also, in 
a narrow sense, to the populace of the medieval city of 
Rome. Twice in medieval history that populace had 
attempted to play the role. The Revival of Roman 
Law had not only served for the foundations of the 
Hohenstaufen Empire, but had recalled to men's minds 
that, before the old Empire had existed, there had been 
a Populus Romanus, itself sovereign over the world, and 
that the very sovereignty of the Emperor had been in 
origin a delegation from this people. It was with this 
narrow " populus " in mind that the lawyers, for the 
most part, discussed the relations of the Populus 
Romanus to the Emperor. 

1 Vide Gierke, Deutsche Genossenschaftsrecht, vol. m. p. 128. 

2 The Pope too, so far as he was allowed to have instituted the 
Electors, might be considered a delegate of the People. Vide Gierke, 
Pol. Theories of the Middle Age, notes 155-7, pp. 149-50, more 
especially for the references to Occam. 

3—2 



36 THE EMPIRE [CH. 

The lawyers on this topic discussed two questions — 
first, whether the delegation of Imperial power by the 
Lex Regia was a revocable grant, and secondly, whether, 
after the act of delegation, any power still remained 
with the Populus, in particular the power of making 
laws; at the same time they considered whether the 
Senate had still authority to pass Senatusconsulta. 

Bartolus discusses and decides the two questions 
together. The Emperor alone can make and interpret 
law. Originally, even after the delegation of the Im- 
perium to the Emperor, the Populus retained the power 
of making law, because they still retained the power of 
election and deprivation. But nowadays "omnis potestas 
Imperii est abdicata ab eis." The German princes have 
the right of election, the Pope alone the right of depri- 
vation. The people retains " nihil de Imperio," and so 
cannot retain their legislative power. But the passage 
is well worth quoting in full. a Nota," says Bartolus, 
" quod solus Imperator potest legem condere et inter- 
pretari....Opponitur et videtur quod imo et alius 
quam Imperator potest legem condere, scilicet populus 

Romanus Item senatus . . . Solutio : dicunt quidam, 

Imperator solus potest, et nullus alius solus. Alii 
dicunt, quod illi faciunt Principis auctoritate, et hoc 
magis placet. Sed an hodie populus Romanus et 
senatus possit (sic) facere legem ? Gl. dubitat hie et 
in lege ' Non ambigitur.' Breviter dicebam ibi 1 , ego 

1 Comment, on Dig. Vet. Part i. (D. i. 3. 8), p. 53. Bartolus is not 
quite so decided here. "Videtur quod soli Principi sit licitum condere 
legem.... Timore hujus contrarii fuit revocatum in dubium, utrum 
hodie isti possint condere legem. Quidam (i.e. say) quod sic... Quia 
verum est quod solus Princeps potest, non tamen alius solus, sed simul. 
Unde senatores possunt condere legem et populus Eomanus idem 



II] THE EMPIRE 37 

credo quod populus Romanus et senatus non possunt 
facere legem. Ratio est : postquam populus Romanus 
transtulit potestatem in Principem, adhuc apud eos 
remansit potestas eligendi et privandi...et illo tempore 
poterat populus Romanus condere legem, et etiam 
senatus : sed hodie omnis potestas Imperii est abdicata 
ab eis. Jus enim eligendi habent principes de Aleman- 
nia, et jus privandi habet solus Papa.... Cum enim nihil 
sit quod de Imperio remanserit eis, non video quo 
possint legem condere, quod nota. Et hanc rationem 
nullus facit 1 ." 

We may next turn to a passage from the Com- 
mentary on the Code 2 . Bartolus is considering various 
difficulties, and the solution of these difficulties, in this 
particular law, C. VIII. 52. 2 — "Secundum Placentinum 
(quod) dicta lex ' De quibus ' (D. I. 3. 32) loquitur secun- 
dum tempora antiqua, secundum quae populus Romanus 
poterat facere legem generalem; ergo et consuetudinem 
generalem contrariam legi, et illam contrariam legem 

potent, cum populus Romanus posset Principis potestatem revooare. 
Sed tamen hoc glossa non tenet, sed tenet quod populus non posset 
hodie. Unde Gulielmus (de Cunio) bene dicit, quod est differentia 
inter legem et senatusconsultum. Nam legem nullus potest facere 
nisi Princeps, sed senatusconsultum potuerunt facere senatores" — 
(he does not say "possunt"). He then goes on to discuss whether 
Populus Romanus "possit revocare potestatem Imperatoris," and 
gives Gulielmus de Cunio's arguments to prove that they can — "imo 
dicit plus, quod possit eum degradare"; he does not decide himself, 
but goes off to ask — ' ' Quid si coram senatoribus est impetrata venia 
aetatis, an ipsi hoc possunt?" 

1 Comment, on Codex, Part i. (C. i. 14. 11), p. 92, §§ 2-4. 

2 Comment, on Codex, Part n. (C. vm. 53. 2), pp. 324 and 325. This 
law runs: " Consuetudinis ususque longaevi non vilis auctoritas est, 
verum non usque adeo sui valitura momento ut aut rationem vincat 
aut legem." 



38 THE EMPIRE [CH. 

tollentem. Haec lex loquitur secundum tempora 
moderna, secundum quae populus Romanus non potest 
legem generalem facere : ergo nee consuetudinem con- 

trariam illam vincentem Quod non videtur bene 

dictum, quia secundum hoc dictae legi ' De quibus ' 
esset derogatum seu abrogatum...quod in casu dubii 
dicere non debemus....Praeterea Gulielmus de Cunio in 
dicta L. 'De quibus' illud impugnat et aliter fatetur, 
quod in Principem translata est potestas condendi legem 
expressam et scriptam, non autem consuetudinariam, 
quae in eum non potuit transferri, cum procedat ex 
tacito consensu.... Et sic dicit hodie populum Romanum 
posse facere consuetudinem generalem, cum potestas 
ipsius legis consuetudinariae inducendae non sit trans- 
lata in Principem ; et secundum hoc dicta lex ' De 
quibus' hodie remanet in suo statu, quod placet Mar. 
Suli. (Martinus Sulimanus), ubi dicit hodie populum 
Romanum legem posse facere generalem scriptam et 
expressam : de quo hie non insisto, quoniam plene est 
tractatum in lege finali, supra, ' De legibus et con- 
stitut.' " (C. I. 4. 14). 

We see here that while Placentin and Gulielmus de 
Cunio both decide that as regards laws — " scriptae et 
expressae" — the Roman people have no power left them, 
Martinus Sulimanus clings to the opinion that they 
still have that power. Here again Bartolus does not 
decide, but refers us back to the passage, which we have 
quoted above, from the Commentary on C. I. 14. 12, 
where he maintained that the Roman people no longer 
has the power to legislate 1 . 

1 Jacobus Buttrigarius, Bartolus' master, maintained the right both 
of people and senate, and his argument is well worth quoting. Vide 



II] THE EMPIRE 39 

The attempts of Arnold of Brescia and of Rienzi 

may warn us against dismissing these discussions as 

absurd or purely academic. On the other hand the 

very failure of these attempts had made quite clear that 

the world would not accept either laws or commands 

from the Roman populace. Bartolus, at any rate, denies 

the Populus any power to make general laws. We may 

note, however, that in the second passage, quoted 

above, the discussion is not merely on the right of 

the Roman people to make laws — "scriptae et ex- 

pressae " — but also on the right to give their customs 

the force of law. Placentin denied them this last right, 

Gulielmus de Cunio allowed it : Bartolus himself seems 

to lend some support to the latter view 1 . Yet here too 

his Comment, on Codex, Part i. (C. i. 14. 2), p. 31 verso: "Quaero an 
populus Eomanus possit hodie legem condere et Imperium revocare. 
Resp. sic, quia quaecunque disponuntur per modum legis possunt 
revocari per contrariam legem... sed ita est quod Imperium fuit trans- 
latum in Principem per legem revocatoriam ; ergo per contrariam legem 
possunt revocare. Praeterea, nonne potestatem dedit prius populus 
Romanus senatui et revocavit et dedit Principi?...Sed potest dubitari 
an senatus hodie possit legem facere : nam ab eo Imperator potestatem 
non habet, sed a populo. Sed die quod nullus solus potest facere nisi 
Princeps, sed omnes senatores simul qui sunt centum numero possunt 
facere. ..Nam tempore quo fuerit facta ilia lex jam erat translatum 
Imperium in Principe, cum post primum Codicem fuerit compilatum 
Dig. vetus, et tamen ibi dicitur quod possunt legem facere. Vel die 
quod faciant auctoritate Principis." 

1 We may continue the passage above: — "Sed contra praedicta 
instatur. Nam non debemus sequi quod pop. Rom. fecit, scilicet 
utendo moribus contra legem, sed quod facere debeat, scilicet utendo 
lege communi....Sed gl....sic respondet et bene, videlicet quod non 
debemus sequi illud quod pop. Rom. facit perperam et erronee...Sed 
bene sequi debemus illud quod pop. Rom. ex certa scientia fecit con- 
suetudinem inducendo...quia Roma est communis patria...et est caput 
mundi, et sic aliae civitates debent sequi ipsius consuetudinem, non 
autem ipsa aliarum civitatum...unde illud vulgare: 'Roma caput 
mundi tenet orbis frena rotundi.'" 



40 THE EMPIRE [CH. 

the discussion was, if we should not say academic, at 
least a question that in fact was decided ; and Cino, 
realising this, had told his readers that he did not care 
which view they held — either as regards the power to " 
make law or custom — since he knew that no one would 
observe them outside of Rome itself. " De his opini- 
onibus tene quae magis tibi placet, quia ego non euro. 
Nam si populus Romanus faceret legem vel consuetu- 
dinem de facto, scio quod non servaretur extra urbem 1 ." 
The whole discussion as to the power of the Populus 
Romanus, with regard to law or custom, was by this 
time merely a remnant of an antiquated conception of 
the Populus Romanus, as represented by the actual 
Roman populace. Rome might always be the " com- 
munis patria " or the " caput mundi," but no longer in 
the sense that its populace was, or represented, the 
Populus Romanus. 

The Emperor, then, alone can make general laws. 
But we have seen that this Emperor, though de jure 
" dominus omnium," is de facto not obeyed by many 
kings and peoples. Is this same distinction between 
de jure universality and de facto disobedience to 
hold good in the case of the laws of this Roman 
Emperor ? 

If we turn back to the discussion as to the extent of 
the Populus Romanus, we see that, though in this 
passage Bartolus refers to obedience to the Roman Law, 
as a sign of obedience to the Empire " in aliquibus " — 
in the case of those "qui non obediunt Romano Imperio 
in totum, sed in aliquibus obediunt : ut quia vivunt 
secundum legem populi Romani, et Imperatorem 
1 Cino, Comment, on Codex (i. 14. 12), p. 29. 



Il] THE EMPIRE 41 

Romanorum esse dominum omnium fatentur, ut sunt 
civitates Tusciae, Lombardiae et similes" — and again 
refers to those who, like the Venetians, " nullo modo 
obediunt Principi nee istis legibus," — he does not 
finally introduce this question of obedience or disobedi- 
ence to Roman Law as the decisive test of inclusion 
within the Populus Romanus 1 . 

With this we may compare another passage, which 
follows immediately after his explanation of the words 
" Cunctos populos quos etc.," in the first law of the 
Code, which we have noticed above. He explains that 
these words may be either understood de jure — and 
that he believes was what the Emperor meant — or, 
if the words are to be explained de facto, then the 
relative " quos " must be understood " restrictive," and 
this is given as Cino's opinion — " per duas rationes. 
Primo ne leges sint apud eos ludibrio, quod esse non 
debet.... Secunda ratio quia non sunt digni (i.e. those 
who do not obey the Emperor) legum laqueis innodari.' 
As a matter of fact the reasons, though given by Cino, 
were given before him by Petrus de Bella Pertica, 
whose words are well worth quoting. "Diceret aliquis," 
he says 2 , "quae est ratio sui dicti, ex quo omnes Imperio 
subjacent, ad quid tunc dixit, ■ quos nostrae clementiae 
etc.?' Breviter, quia sunt de jure sub Romano Imperio, 
et de facto non reguntur, quia reputantur viles, ut non 
sint digni legum laqueis innodari; unde alias Graeci 
noluerunt legem Romanis tradere, nisi essent digni. 
Unde. cum illi, qui non obediunt Imperio, viles repu- 
tantur, hinc est ut non sint digni legibus ligari: et ideo 

1 Vide above, p. 28. 

2 Eepetitiones in Aliquot... Cod. Leges (C. i. 1. 1), p. 8, § 3. 



42 THE EMPIRE [CH. 

dixit Imperator, 'cunctos populos quos etc.'...Quaedam 
sunt personae, quae propter eorum vilitatem legum 
laqueis non sunt dignae innodari....Item alia ratione 
Imperator noluit comprehendere eos, qui non reguntur: 
nam licet posset omnes cohercere, tamen quia illi, qui 
non recognoscunt Imperatorem dominum, non servarent 
statutum, ne ex errore uno sequatur alius error... ne 
statuta sua reputarentur frustatoria et delusoria, quod 
esse non debet, ideo Imperator talibus noluit statutum 
suum extendi 1 ." 

Now the argument of Petrus means this, that obedi- 
ence to the Emperor means obedience to his laws, that 
those who do not obey are unworthy of his laws, and 
that therefore the Emperor, rather than let his laws 
be illusory, renounces his superiority over those who 
do not obey him. There could be no more curious 
or interesting example of the difference between our 
conception of law and that of the Middle Ages. To 

1 As Bartolus refers here to Cino it may be well to give Cino's 
words as well as those of Petrus. Vide Cino, Comment, on Codex 
(C. i. 1. 1), p. 1 verso, §§ 2-3: "...Videtur innui quod Imperator non 
regit totum populum ut colligitur ex litera ista 'quos etc' Sed lex 
alibi dicit quod Imperator est totius mundi dominus....Praeterea lex 
cavetur quod Deus de coelo constituit Imperium....Ergo temporaliter 
sub Imperio omnes populi omnesque reges sunt, sicut sub Papa sunt 
spiritualiter. Ergo contra. Eespondeo, litera ista ' quos ' potest sumi 
duobus modis. Uno modo implicative.... Secundo modo restrictive.... 
Et secundum hoc respondeo quod Imperator totius mundi de jure 
dominus est: sed de facto sunt aliqui qui resistunt, propter quod 
ponit hie istam literam restrictivam, et hoc facit duobus rationibus: 
prima, ne suae leges apud illos sint illusoriae, quod esse non debet... et 
sic ex uno errore sequeretur alius.... Secunda ratio est, quia illi, qui 
non recognoscunt Imperatorem suum dominum, reputantur viles et 
indigni laqueis suae legis innodari....Unde alias dicitur quod Graeci 
noluerunt trad ere leges Eomanis, nisi essent digni legibus, et ideo 
experti sunt eos per signa, sicut refert Glossa." 



II] THE EMPIRE 43 

them law was the "gift and invention of God," and 
was therefore something too good for the "vile" and 
the " unworthy " ; while to us, who have brought law 
down from Heaven, and put it, as a command, into the 
mouth of a " sovereign," the notion of law as too good 
for its subjects, the notion of a " sovereign " voluntarily 
abdicating his claims over a part of his subjects, " ne 
leges sint apud eos ludibrio," is almost incomprehensible. 
To Bartolus also the view of Petrus and Cino was unac- 
ceptable. Not, indeed, because to him law was anything 
but the " gift and invention of God," but simply because 
Bartolus, far in advance of these other lawyers, per- 
ceived that Imperial law could not be restricted merely 
to those who remain subject to the Emperor. "Hoc 
non multum placet," he says after having given the 
" duas rationes " of Cino, " quia sequeretur quod leges 
Imperiales non ligarent Florentinos, et alios qui non 
obediunt Principi de facto " ; and therefore, as we saw 
above, he prefers the " declarative " interpretation of 
the words " Cunctos populos quos clementiae nostrae 
regit temperamentum " — i.e. " prout de jure est." 

Bartolus here is doubtless thinking chiefly of Italy, 
but it would be a mistake to suppose that he restricts 
the universality of Roman Law to Italy 1 . Roman Law 

1 In the case of Frederick IPs Constitution " Cassa et Irrita," which 
was included in the Code, its universal validity is definitely stated, 
though the " praeceptum de publicando " was only in Italy. Vide 
Comment, on Codex, Part i. (C. i. 2. 12, Authentic. Cassa et Irrita), 
p. 42, §§ 1-2: " Dicit hie 'per Italiam.' Quaeritur utrum ista 
constitutio habeat locum alibi quam in Italia. Gl. dicit quod sic, 
quia eadem ratio, et dicit verum. Nam ista constitutio est generalis 
in toto mundo, preceptum vero de publicando non fuit nisi in Italia, ubi 
magis expedit." Albericus deRosate is very clear; vide his Comment. 
on Codex, Part i. (C. i. 12. 6), p. 45: "Ratio quare haee lex in ea 



44 THE EMPIRE [CH. 

is the Jus Commune, and the laws of all other peoples 
are no more than Statutes, valid only within their 
limited boundaries, and, even within them, as else- 
where, inferior to the Jus Commune. And if his deci- 
sion that obedience to Roman Law was not to be 
dependent upon recognition of the Roman Emperor, 
was important for the future of Roman Law in Italy, it 
was still more important for Europe at large. We have 
to remember that, though we are still a century off the 
"Reception," the encroachment of Roman Law on the 
national, customary laws had long since begun, in 
Germany, France and even England. At any rate it 
is certain that, if Roman Law was to be "received," 
it would have to be divorced completely from its con- 
nection with the Emperor; it must come as Common 
Law, not Imperial Law, if it was to be accepted by the 
sovereign "Princes." To Bartolus Roman Law is still 
essentially the Emperor's law — he had himself glossed 
two constitutions of the Emperor Henry VII and 
placed them as an eleventh collation in the Authen- 
ticum. But he has taken a step of the greatest 
importance in separating obedience to the Emperor's 
laws from recognition of the Emperor himself. We 
shall have to return to this point more than once in 
later pages. 

Thus far, then, our analysis of Bartolus' thought 
gives us a picture of an Imperator or Rex Roma- 
norum, who is de jure lord of the whole world. This is 

(i.e. Constantinople) locum non habeat, statim subditur, quia per- 
sonaliter est Imperator, qui providere potest. Ex qua ratione dicunt 
quidam leges non servari in Alemannia vel alibi, ubi sit Imperator; 
quod non puto verum. Eegulariter autem lex communis est omnibus 
civitatibus et locis." 



Il] THE EMPIRE 45 

explained as meaning that he is lord of the whole world 
considered as one "universitas," but that he is not lord 
of each particular part, all of which together make up 
that "universitas." Then "the world," we found, is 
practically synonymous with western Christendom; all 
Christians (i.e. western Christians) are the Populus 
Romanus. This is all de jure; Bartolus has already 
made it quite clear that de facto the majority of the 
European powers do not obey the Emperor; though, 
whether they do or not, he has managed to retain them 
within the Roman people. We must now, therefore, 
turn from right to fact, and see how Bartolus handles 
the relations of this de jure "dominus omnium" with 
those who de facto do not obey him. This we shall 
do most conveniently under three heads : (1) the rela- 
tions of the Empire with the Papacy ; (2) the relations 
of the Empire with the national kingdoms; (3) the 
relations of the Empire with the Civitates — which 
means the cities of Lombardy, Tuscany and Central 
Italy. 

We have still, however, one more point to consider, 
before we turn to the relations of the Empire and the 
Papacy. So far we have seen no check to the Imperial 
omnipotence save such as came from fact; we must 
now, to complete our view of the Empire, consider 
restrictions of a different kind. Not only the Emperor, 
but his own laws — the Jus Commune et Imperiale — 
and all other human laws, are dependent upon higher 
laws — the Jus Divinum, the Jus Naturale and the Jus 
Gentium. And even as regards his own laws, though 
he submits to them "de voluntate," not "de necessi- 
tate," it is still "aequum et dignum" that he should 



46 THE EMPIRE [CH. 

be bound by them. On the other hand a compact the 
Emperor is bound to observe, for a compact is "de jure 
gentium," and the Jura Gentium are immutable 1 . 

A question much discussed by the medieval civilians 
was whether the Emperor can take away without cause 
another man's "dominium" in a thing. Jacobus But- 
trigarius, says Bartolus, said "simpliciter" that he can. 
Bartolus, who denies, as we have seen above, that the 
universal lordship of the Empire interferes with parti- 
cular ownership, maintains the contrary 2 . The Emperor 
cannot make a law containing anything unjust or dis- 
honest, for that is contrary to the substance of law, 
which is "sanctio sancta, jubens honesta et prohibens 
contraria." God gave him jurisdiction, but not for the 
purpose of sinning or injustice. The Emperor can take 

1 Vide Comment, on Codex, Part i. (C. 1. 14. 4), p. 87 : "Breviter hie 
dicitur, aequum et dignum est Principem et legibus vivere, et quemlibet 
habentem imperium. Opponitur quia in veritate Princeps est solutus 
legibus.... Solutio : fateor quod ipse est solutus legibus. Tamen aequum 
et dignum est quod legibus vivat. Ita loquitur hie. Unde ipse sub- 
mittit se legibus de voluntate, non de necessitate. Ita debes intelligere 
hanc legem. Quaero, quid si Imperator facit pactum cum aliqua 
civitate, utrum teneatur illud pactum servare? Videtur quod non 
quia est solutus legibus.... Contrarium est Veritas. Nam pacta sunt 
de jure gentium.... Jura gentium sunt immutabilia. " 

2 Vide Comment, on Codex, Parti. (C. i. 22. 6), p. 112, § 2: "Quod 
non puto verum," says Bartolus. "Nam Princeps non posset facere 
unam legem quae contineret unum inhonestum vel injustum. Nam 
est contra substantiam legis. Nam lex est sanctio sancta, jubens 
honesta et prohibens contraria.... Eodem modo si vellet auferre mihi 
dominium rei mei injuste, non posset, quia Princeps habet jurisdic- 
tionem a Deo....Deus non dedit ei jurisdictionem peccandi, nee 
auferendi alienum indebite." Cf. Comment, on Dig. Vet. Part i. 
(Prima Constitutio, § Omnem), pp. 9-10, §§ 4-6. He also asks, 
"Quid de civitate?" and answers, " Dico idem multo fortius quod 
etiam legem condendo dominium rei mei sine causa auferre non 
potest." 



II] THE EMPIRE 47 

away "quaedam de jure civili, ut actiones, quaedam de 
jure gentium, ut dominium," he cannot 1 . 

The question of usury furnishes another interesting 
example. That usury was tolerated by the Civil Law 
was clear, while strictly condemned by the Canon Law 
and the general public opinion of the Middle Ages 2 . 
But it is forbidden, not only by Canon Law, but also 
by Divine Law. "Hodie de jure canonico, imo potius 
de jure divino, obligatui usurarum lex resistit in 
totum 3 ." It cannot be denied that it is allowed by the 
Civil Law, and the Emperor, who allowed it, is not 
therefore to be considered a heretic, because Moses also 
permitted usury "propter duritiem populi 4 ." But it is 
"de voluntate juris civilis," not "de potestate," for "non 
potuit Imperator tollere legem majoris, scilicet legem 
divinam," as expressed in the Gospel prohibition of 
interest 5 . 

In this context it is interesting to turn to one or 
two of the many passages in which Bartolus calls 
attention to the fact that the Digest is the work of 

1 Vide Comment, on Codex, Part i. (C. i. 19. 2), p. 105, § 3. But 
" ex causa " he can; vide Comment, on Dig. Vet. Part i. (D. vi. 1. 15), 
p. 557: "Nota quod Princeps ex causa potest auferre jus meum seu 
rem meam et dare alteri. Idem puto in republica alterius civitatis." 

2 Vide Comment, on Infort. Part n. (D. xxxiv. 6. 2), p. 316: 
" Sicut enim de jure civili usurae sunt prohibitae ultra certam 
quantitatem, ita hodie de jure canonico sunt prohibitae in totum." 
So Comment, on Infort. Part i. (D. xxiv. 3. 43), p. 77 : " Omnes usurae, 
etiam legales, sunt hodie prohibitae et correctae de jure canonico." 

3 Comment, on Dig. Vet. Part n. (D. xn. 6. 26), p. 159. 

4 Comment, on Codex, Part i. (C. iv. 32. 16, Auth. ad Haec), p. 485: 
" Non possumus negare quin usurae de jure civili sunt permissae, licet 
permitti non potuerunt: nee propter eas haereticus fuit Imperator, 
quia Moyses propter duritiem populi permisit usuras." 

5 Vide the "Antiqua Lectura," §§ 5-6 on the same law.. 



48 THE EMPIRE [CH. 

Pagan authors. Thus, in commenting on the first 
preface to the Digest, Bartolus considers 1 the propriety 
of the invocation of the Divine Name at the beginning 
of a work by Pagan lawyers — "cum omnes istae leges 
fuerint factae per paganos." He accepts, as expla- 
nation, that it is Justinian himself — "fait Christianis- 
simus," said Cino 2 , "et in nullo erravit" — who is speaking 
as the author of this first preface, and that he is 
speaking here, not of the laws themselves, but of his 
compilation. The same discussion occurs at the begin- 
ning of his Commentary on the Digestum Novum 3 . 
The passage is also interesting in another regard. 
Realising that the Jurisconsulti were Pagans, Bar- 
tolus seems to think that this should mean that they 
lived before Christ. "Dicitur quod tempore Caesaris 



1 Vide Comment, on Dig. Vet. Part i. (Prima Constitutio), p. 1, 
§ 1: " Et prima nota quod hie fit invocatio divini nominis, scilicet 
Christi....Et certe hie dubitatur de uno, ut in glossa quadam antiqua, 
quae communiter non habetur, et quaerit quomodo est hoc possibile 
quod invocatio Jesu Christi fuerit facta hie, cum omnes istae leges 
fuerint factae per paganos. Et respondet hie Justinianus et Inst, in 
proemio....Et voluerunt quidam dicere quod, quamvis hoc sit, nihilo- 
minus ille, qui loquitur, ut est Justinianus, potest hoc facere, qui fuit 
hujusmodi constitutionis compilator. Item non loquitur hie de legibus, 
sed loquitur de compilatione sua." 

2 Vide Cino, Comment, on Codex (C. i. 1. 1), p. 2, § 6. 

3 Vide Comment, on Dig. Nov. Part i. (xxxix. 1, sup. rubric), 
p. 1 : " Quaesitum fuit a compilatoribus quoniam in omni operis 
principio consuevit invocatio fieri secundum sectarum diversitatem. 
Quaero quem vos invocabitis in isto principio. Eespondent compila- 
tores, Nos sumus Christiani et Imperator Justinianus, ideo invocabimus 
nomen domini nostri Jesu Christi.... Oppono, cum ab alia secta quam 
Christiana nomen Christi invocatur, videtur fieri in contemptu....Sed 
isti fuerunt Jurisconsulti, qui fuerunt ante Christum, et sic pagani. 
Ergo etc. Nam in Legibus 1 et 2, De orig. juris dicitur quod tempore 
Caesaris fuerunt et Christus fuit natus tempore Octaviani." 



Il] THE EMPIRE 49 

fuerunt," whereas Christ was born in the time of Octavian. 
Another lawyer, whose commentary on Book xxvu. of 
the Digest is included in most editions of Bartolus, 
points to a law of the Infortiatum as showing expressly 
that the laws of the Digest were made after the advent 
of Christ, though he refers to several contrary Glosses 1 . 
But however weak these passages may show the 
medieval civilian's history to have been, they are 
exceedingly interesting as illustrating his mental out- 
look. A lawyer like Bartolus, in daily touch with 
a work that was obviously pre-Christian, was compelled, 
to some extent, to realise that, though the Corpus Juris 
was a living system of law, none the less it belonged to 
a different age, with different ideas and ideals. Bartolus 
had as little history as most medieval thinkers, but he 
does certainly seem to realise, dimly perhaps, but con- 
tinually, that there are changes in the modes of life 



1 Nicholas de Neap. (Spinellus), a contemporary of Bartolus, 
Comment, on Infort. Part i. (D. xxvu. 1, 17, § Jam Autem), p. 217: 
" Ibi, ■ non Judaeorum ' exponit glossa i. ' Christianorum,' et sic 
secundum istam expositionem habes expresse quod leges Digestorum 
fuerunt factae post adventum Christi in Virginem. Tu habes glossam 
contrariam in Lege Titia, § finali, infra, De auro et argent, legat. 
(D. xxxiv. 2. 38, § Seia) et Lege i. D., De justitia et jure (D. 1. 1. 1)...." 
Of the Glosses referred to, that on D. xxxiv. 2. 38, § Seia, says on the 
words of the Law " volo jubeoque signum Dei" — " ut crucem, 
secundum Hug. Sed certe hoc tempore Christus non venerat in 
Virginem, unde die quandam imaginem." The other Gloss is on 
the words ' ' In nomine Domini ' ' — ' ' Hoc in compilatione Digestorum 
fuit dictum, non quando leges factae fuerunt, quia pagani erant." In 
the Comment, on Dig. Nov. Part n. (D. xlv. 1. 34), p. 43, Bartolus 
says : ' ' Ista lex non habet respectum ad Judaeum vel hereticum vel 
de Christiano, cum isti condentes jura Digestorum erant pagani, cum 
leges fuerint factae per trecentos annos antequam Christus veniret, 
vel plus." 

W. 4 



50 THE EMPIRE [CH. 

and thought, no less than the visible political changes 
in the succession of Empires and Kingdoms. 

This is illustrated, in connection with our present 
inquiry, in an interesting manner. In cases of dis- 
crepancy between texts in different parts of the Corpus 
Juris Bartolus is, as a rule, very unwilling to accept, as 
explanation, that the later has corrected the earlier 1 . In 
the present instance, however, we shall see this allowed. 
"Videtur quod testator non possit prohibere Falci- 
diam," he says in his Commentary on the Code 2 ', and 
answers — "Aliud olim aliud hodie, et sic ilia jura cor- 
riguntur," that is to say, the law "Quod de bonis" of the 
Digest is corrected by the Novels. The prohibition 

1 Comment, on Big. Vet. Part i. (D. i. 1. 9), p. 26, § 2: " Dicunt 
quidam quod haec (lex) per illam (C. de leg. 1. final.) corrigitur: quod 
non placet, quia debet evitari legum correctio quantum potest." Cf. 
Comment, on Infort. Part i. (D. xxv. 1. 5), p. 92, § 1 : " Die quod nos 
debemus leges legibus concordare, si possumus." 

2 Vide Comment, on Codex, Part n. (C. vi. 49. 19, Auth. Sed cum 
testator), p. 138, §1: "Videtur quod testator non possit prohibere 
Falcidiam....Solutio: aliud olim, aliud hodie: et sic ilia jura cor- 
riguntur. Illud est certum, sed unum fecit me jam dubitare secundum 
rationem Legis Quod de bonis § 1, quae dicit quod ideo testator non 
possit prohibere, quia est contra publicam utilitatem. Si ilia ratio 
esset vera, videretur quod adhuc hodie non possit prohibere. Domini, 
pro certo ista nostra jura moralia variantur ex tempore secundum 
morum varietatem. Lex Quod de bonis fuit facta tempore quo erant 
pagani, nee vita in alio seculo sperabatur. Sed aliud cogitabant nee 
aspiciebant merita animae et ideo cogitaverunt quod si haeres non 
lucraretur ex aditione haereditatis, omitteret haereditatem et sic 
testamentum remaneret nullum, quod esset contra publicam utili- 
tatem.... Postea tempore hujus authenticae Eomanum Imperium erat 
Christianum et Imperator Justinianus fuit Christianus, et sic ipse 
considerabat aliud seculum et salutem et merita animae ; unde 
cogitavit quod licet haeres non lucraretur aliquid commodi pecuniarii, 
tamen ex eo solo quod facit istum pium actum, quod adimplet volun- 
tatem defuncti, habet meritum apud Deum et propter lucrum istius 
meriti cogitavit quod non omitteret aditionem haereditatis." 



II] THE EMPIRE 51 

was not allowed formerly as being contrary to public 
utility: " to-day" it is no longer contrary, and therefore 
allowed. "Domini," Bartolus continues, "pro certo ista 
nostra jura moralia variantur ex tempore secundum 
morum varietatem." The law " Quod de bonis " was 
made in Pagan times, when an after-life was unthought 
of. It was therefore thought that, if the heir received 
no pecuniary advantage from the " hereditas," he would 
repudiate it, which would have been contrary to the 
public advantage. But "tempore hujus authenticae" 
the Roman Empire was Christian and the Emperor 
Justinian himself a Christian, who took account of 
another world and the salvation and merit of the soul. 
And so he thought that though the heir had no pe- 
cuniary advantage, yet in fulfilling the will of the dead 
he would obtain merit and reward in the eyes of God 1 . 

This acknowledgment that "nostra jura moralia 
variantur ex tempore secundum morum varietatem" is 
very noteworthy. It must be taken in connection with 
the general aim which dominated the work of the Post- 
glossators. Their aim was to adapt the texts into a 
law practically effective for the Italy of their day. 
The revival of Roman Law associated with the school 
of Bologna in the eleventh and twelfth centuries was, 
Ave must remember, the first general and direct contact 
of the European mind with Pagan antiquity. Thence 
onwards, till the revival of Greek at the end of the 
Middle Ages, Pagan learning flowed back into western 

1 Cf. similar passages in Comment, on Infort. Part n. (D. xxx. 1. 
58), p. 45, §§ 5-6, and in Comment, on Dig. Vet. Part i. (D. n. 14. 47), 
p. 302, § 2: both treat of the same matter and bring out the diffe- 
rence in the attitude of the Pagan Jurisconsulti and the Christian 
Justinian. 

4—2 



52 THE EMPIRE [CH. 

Europe in a continuous stream. That learning had to 
be assimilated with the Christian ideas and ideals, 
which were the foundation of medieval thought. The 
process of assimilation is most conspicuous, and perhaps 
most interesting to watch, in the case of Aristotle. But 
we have to remember that there is a similar process 
in the case of the Corpus Juris. It is true that the 
Corpus is the compilation of a Christian Emperor, and 
is only in part the work of Pagan jurists; but then, 
even in its Christian parts, the Corpus Juris is built on 
foundations that lie far back in the Pagan past. The 
importance of this we shall see later, in dealing with 
the theories of Bartolus on the relations of the Empire 
and Papacy. It is enough for our present purpose to 
see that his clear recognition of the Pagan character of 
the Digest falls into line with the practical aim of all 
his work — namely to adapt Roman Law to the con- 
ditions of his own day. 

Finally, we should note that certain distinctions, 
both subtle and logical, were made, by which, while the 
superiority of these higher laws over purely human law 
was safeguarded, the scope of legislation, either by 
Leges or Statuta, was not restricted within too narrow 
limits. "...Dicimus de jure divino quod distinguatur, 
non tollatur, per humanum 1 ." This is explained more 
in detail in the commentary on the law "Omnes 
Populi," where Bartolus developes his theory of 
statutes 2 . As far as the Jus Divinum is concerned 
with "spiritualia," statutes, like Imperial laws, contra- 
dicting it are invalid. But so far as it is concerned 

1 Vide Comment, on Infort. Part i. (D. xxiv. 3. 25), p. 49, §§ 40-1. 

2 Comment, on Dig. Vet. Part i. (D. i. 1. 9), p. 30, § 22. 



II] THE EMPIRE 53 

with " temporalia " it may be amplified by human laws. 
Thus Divine Law says — "Thou shalt not kill"; but 
elsewhere it says that the slayer shall himself be killed. 
Hence "ex causa potest permitti per leges et statuta 
quod quis occidatur." Again Divine Law says — "In ore 
duorum vel trium stat omne verbum." Civil Law, how- 
ever, says seven witnesses are required to a will. In 
this case Civil Law holds, because it excludes sin — that 
is to say, the extra witnesses exclude the chance of 
fraud. But if the Civil Law does not exclude sin, it is 
invalid where contrary to Divine Law, since it is then 
no longer amplifying, but revoking the superior law. 

As regards Natural Law and the Law of Nations a 
similar distinction was made. "Si quidem statuta fiant 
super his, quae nullo jure disposita sunt, valent...Si 
autem super his, quae disposita sunt a jure naturali 
vel gentium, non valent tollendo in totum, sed in aliquo 
derogando vel addendo, sic 1 ." 

I. THE EMPIRE AND THE PAPACY 

It is nowhere more important to realise that the 
Corpus Juris is only in part a Christian book than 
when we come to the topic with which we are to deal 
in this section. Even in its Christian parts the Corpus 
Juris represents political conceptions which are funda- 
mentally Pagan 2 . The Corpus Juris represents, as 

1 Ibid. § 21. 

2 Vide Gierke, Deutsche Ge?wssenschaftsrecht, vol. in. p. 128: 
"Das Corpus Juris uberlieferte auch in seiner aus christlicher Zeit 
herriihrenden Bestandtheilen der Nachwelt keinen specifisch christ- 
lichen, sondem den mit christlichen Zuthat ausserlich geschrmickten 
heidnischromischen Staats- und Kechtsbegriff . " 



54 THE EMPIRE AND THE PAPACY [CH. 

regards the relations of Church and State, the system 
which is known as Byzantinism, and which means the 
absorption of the Church in the State. Christianity 
had come into conflict with the Empire, just because it 
was opposed to the Pagan conception of religion as 
existing "in the State, for the State and through the 
State 1 ." When Christianity became a lawful religion, 
and finally the only lawful religion, the Imperial con- 
ception of the omnipotence of the State over religion 
underwent little, if any, change. The change came far 
more from the side of Christianity, first demanding, 
through the Apologists 2 , admittance within the Empire, 
and then in part accepting the Imperialist standpoint. 
In the famous words of S. Optatus — "Non (enim) est 
respublica in ecclesia, sed ecclesia in republica, id est in 
imperio Romano 3 ." 

But this by no means represented the universal 
view of the fourth century Churchmen, and whether 
S. Optatus or S. Ambrose 4 represent the dominant 

1 Gierke, op. cit. p. Ill and cf. Bamsay, The Church in the Roman 
Empire, chap, xiv., espec. pp. 354 and ff. Cf. also p. 236 — the 
Christians were regarded as "enemies to civilised man and to the 
customs and laws which regulated civilised society, etc." 

2 Vide, as an excellent example, the well-known passage in chap, 
xvn. of Justin's first Apology. The Apologist has to show that 
Christianity is not incompatible with citizenship. 

3 The passage is quoted in full by Carlyle, Hist, of Med. Pol. 
Thought in the West, vol. i. p. 148, note 3. 

4 Carlyle, op. cit. vol. i. p. 1, brings together a number of 
examples to show that there was "a more general appreciation at 
that time of the independence of the Church relatively to the State 
than has been always recognised." Still it is worth noting that a 
good part, if not most, of his examples come from pens engaged at 
the moment in violent controversy, in which the other side had 
Imperial support. This however is not true of S. Ambrose, who 



II] THE EMPIRE AND THE PAPACY 55 

opinion, there can be no doubt, when we come to the 
fifth century, that the western Church was not going 
i to accept the Byzantine conception of the relations of 
Church and State. Byzantinism remained the theory 
and practice of the East. The fifth century saw the 
break-up of the Empire in the West, and the definite 
rejection of Byzantinism by a theory, which we may 
call "Gelasianism," not because Pope Gelasius was by 
any means the first to deny the supremacy of the 
temporal power in the spiritual sphere, but because the 
form, which he gave to that denial, was to be of lasting 
influence on the thought of the whole of the Middle 
Ages 1 . Thus in the centuries which lie on the border- 
land between ancient and medieval history we have 
two distinct conceptions of the relations of Church and 
State. We have the Imperial conception of the omni- 
potence of the State, within which is the Church, and 
we have the "Gelasian" conception, in which Church 
and State are conterminous, and which insists on the 
independence, equality and co-ordination of the spiritual 
and temporal powers. In both cases the conception of 
Church and State in antithesis was absent, but in the 
former case the Church was absorbed in the State, while 
in the latter, under the influence of the actual break- 
up of the State in Western Europe, and still more 

certainly represents quite an opposite conception of the relation of 
Church and State to that of S. Optatus. 

] " Duo quippe sunt, imperator Auguste, quibusprincipalitermundus 
hie regitur: auctoritas sacrata pontificum et regalis potestas, in quibus 
tanto gravius est pondus sacerdotum, quanto etiam pro ipsis regibus 
hominum in divino reddituri sunt examine rationem" (Epist. xn. 
§ 2 to the Emperor Anastasius). Vide other passages from Gelasius, 
quoted with this, in Carlyle, op. cit. pp. 187-91. 



56 THE EMPIRE AND THE PAPACY [CH. 

under the influence of S. Augustine, the secular State 
tended to merge into the Church or Civitas Dei. In 
both conceptions there is but one society; but in the 
East that society is a State, in the West it is a 
Church 1 . 

The result is that, in considering the political 
thought of the early Middle Ages, we must get rid of 
the terms Church and State, which nowada}^s inevitably 
imply an antithesis. The political problem of the early 
Middle Ages was to define the relations of the two 
powers in the one Church-State, Civitas Dei or Populus 
Christianus. And this was the more difficult in that, 
while no one doubted that theoretically the Pope was 
the vicar of Christ and the spiritual head of Christen- 
dom, the temporal power was at the same time very 
generally recognised as the "rector et defensor Eccle- 
siae," also the vicar of Christ, and even the "rex 
Ecclesiae 2 ." The vigorous attempt to assert the inde-i 
pendence of the spiritual sphere, which was made when 

1 Cf. Bury, The Constitution of the Later Roman Empire, 
pp. 33-4. 

2 Vide Ohr, Der Karolingische Gottesstaat in Theorie und Praxis. 
His very interesting dissertation brings this out, with regard to 
Charlemagne's relations to the Papacy, with great force. On p. 8 
Ohr, having given a number of discordant opinions by modern 
authorities on those relations, remarks — " Diesen einander mannigfach 
wiedersprechenden Urteilen gegeniiber ist zunachst festzustellen, dass 
die Beurteilung der Frage, wie Karls eigene Stellung gewesen sei, stets 
verquickt zu werden pflegt mit der anderen Frage, welche historische 
Bedeutung dieser Karolingischen Idee von Gottesstaate zuzusprechen 
ist. Und dabei herrscht vielfach die Neigung vor mit den heutigen 
Vorstellungen von Staat und Kirche in einer Zeit zu operieren da es 
weder einen Staat, noch eine Kirche im modemen Wortsinne gab." 
Vide also Dollinger, "The Empire of Charles the Great and his 
Successors" (in Hist, and Lit. Addresses, transl. by M. Wane), 
pp. 109-10. 



II] THE EMPIRE AND THE PAPACY 57 

the Carolingian Empire was breaking up in the ninth 
century, and associated with the names of Nicholas I, 
John VIII, Hincmar of Rheims, and the forged Decre- 
tals, was premature. To understand the Investiture 
struggle, we have to remember that up to its very 
beginning the temporal power has exercised an effective 
supremacy in the Church-State, alike in temporal and 
spiritual matters, while at the same time the theo- 
retical separation of the two spheres, each under its 
independent head, the Imperium or Regnum and Sacer- 
dotium respectively, was generally maintained. And 
not even Charlemagne, or, perhaps, even Justinian him- 
self, seems more obviously supreme, than Henry III, 
deposing three Popes and appointing three others in 
succession. Yet a whole world of difference lies be- 
tween Henry's or Charlemagne's position and Justinian's. 
Justinian represents ideas that go back to days long- 
before the Empire became Christian — the "jus sacrum" 
as a part of the "jus publicum 1 "; Henry or Charlemagne 
represent those Christian Emperors, whose picture 
S. Augustine 2 had drawn, thinking of Constantine and 
Theodosius, but in fact constructing an ideal for the 
Middle Ages. 

The result of the Investiture struggle was to recast 
both theory and practice. 

Gregory VII and the Papalists were combating the 
supremacy of the temporal power within the Church. 

1 Vide Hinschius, "Allgemeine Darstellung der Verkaltnisse von 
Staat und Kirche" (in Marquardsen's Handbuch des oeffentlichen 
Rechts der Gegemvart, vol. i.), p. 192. Cf. Gierke, op. cit. p. 114, 
and Kneeht, Die Beligionspolitik Kaiser Justinians I, p. 147. 

2 Vide De Civitate Dei, Lib. v. chap. 24-6 (in Migne's Patrologia 
Latina, vol. xli.). 



58 THE EMPIRE AND THE PAPACY [CH. 

This applies not only to the Empire, but to all kingdoms ; 
be the temporal power Imperium or Regnum, it must 
stand below the Sacerdotium. But if Henry was, on 
the occasion of the excommunications, in Gregory's eyes 
merely "rex Ttfeutoniae 1 ," we must remember that, 
earlier at least, he had recognised in Henry the "caput 
laicorum" and "Komae, Deo annuente, futurus Impe- 
rator 2 ." The reason why Gregory could keep the peace 
with other kings, but not with Henry, was, in great 
part, just because Henry was not merely King of 
Germany. Henry was heir to the supreme position of 
Charlemagne, Otto and his father Henry III — supreme, 
not only in Germany, but in Italy too, and, most im- 
portant of all, in the Church. To that supremacy Henry 
was heir, and that supremacy the Pope was determined 
not to allow. 

This is the basis of the struggle. The Papacy was 
refusing to acquiesce in the traditional supremacy of 
the secular power in the Church, which formally indeed 
it had never recognised. Up till now the Papacy had 
contented itself — at least if we leave out of account the 
short period in the middle of the ninth century — with 
insisting on the " Gelasian " conception of the equality 
and co-ordination of the two powers and therefore of 
the supremacy of the Sacerdotium in its own sphere 
of " spiritualia." That conception no longer served. 

1 In the first excommunication we read: "...totius regni Teutoni- 
corum et Italiae gubernacula contradico." Vide Reg. in. 10 (in 
Jaffe, Monumenta Gregoriana), p. 224. In the second: "Et iterum 
regnum Teutonicorum et Italiae... interdicens ei." Vide Reg. vn. 
14a, p. 403. Henry calls himself "Romanorum dei gratia rex." 
Vide Reg. i. 29 a, p. 46. 

2 Vide Reg. i. 20, p. 35 and cf. Reg. i. 11, p. 22. 



II] THE EMPIRE AND THE PAPACY 59 

Gregory demanded the absolute supremacy of the 
Sacerdotium, not its mere independence within its own 
sphere. On the other hand, Gregory was as desirous as 
any of his predecessors for concord. This can be illus- 
trated by his relations both with other kings 1 , and also 
with Henry himself — only the price of that concord 
must be the obedience of the temporal power to the 
spiritual in case of conflict. He praised the Empress 
Agnes that through her zeal "for the peace and concord 
of the universal church " she has helped " pontificatum 
et imperium glutino caritatis astringere 2 ," by restoring 
Henry to the communion of the Church : we know as 
a matter of history that the price of that restitution was 
Henry's promise of obedience, in language, as Gregory 
himself says in a letter of the previous year, such as had 
never been addressed before by any king to any Pope 3 . 
In a letter 4 written to Henry himself, he lamented 

1 Vide in 1073 the letter to the Emperor Michael at Constantinople 
in return for "literas...plenas vestrae dilectionis dulcedine et ea, 
quam sanctae Romanae ecclesiae exhibetis, non parva devotione." 
" Seitis enim," he says, "quia, quantum antecessorum nostrorum et 
vestrorum sanctae apostolicae sedi et imperio primum concordia profuit, 
tantum deinceps nocuit, quod utrimque eorumdem caritas friguit." 
Vide Eeg. i. 18, pp. 31-2. Cf. Reg. i. 75, pp. 93-5, a letter of 1074 
to Philip of France. Gregory is rejoiced to see from Philip's letters, 
' ' te beato Petro apostolorum principi devote ac decenter velle obedire 
et nostra in his quae ad ecclesiasticam religionem pertinent monita 
desideranter audire atque perfieere." He reminds him that, "virtus 
christianorum principum in ejusdem Regis castris ad custodiam 
christianae militiae nobiscum convenire debeat." Cf. also letter 
to William I of England, Reg. vn. 25, p. 419. 

2 Vide Reg. i. 85, pp. 106-8. 

3 Vide Reg. i. 25, p. 42. The letter of Henry is in Reg. i. 29 a, 
pp. 46-8. 

4 Vide Reg. n. 31, pp. 144-6. "Sed quia magna res magno 
indiget consilio et magnorum auxilio, si hoc Deus me permiserit 



60 THE EMPIRE AND THE PAPACY [CH. 

that men should sow discord between them, and proposes 
that he should leave the Roman Church itself to Henry's 
protection, while he himself led his projected Crusade. 
The proposal contained in this letter is proof in itself 
that Gregory was sincere in wishing for concord between 
the two powers. The Crusade, we know, was never led 
and, in the end, it was in Rudolf, not Henry, that the 
Pope found the king who would accept the new position 
of inferiority. It is very necessary to do justice both 
to Gregory and Henry, because by understanding them 
we have the key to the whole difference between the 
Papalist and Imperialist standpoint. Gregory was, as we 
have said, obviously sincere in his desire for concord, 
and we may go further and say that he obviously had 
a place of great importance for the secular power within 
the Church. But it must be an obedient power. It is 
equally clear that Henry could not be expected to 
accept this position. Between the two parties is the 
" Gelasian " theory of concord, co-ordination, equality. 
Both parties maintained that they were upholding 
the old tradition. In truth neither of them was. The 
Papalists would throw over the theoretical co-ordination 
and equality of the two powers. The Papalists were the 
innovators. The Imperialists pleaded, not in reality for 
the " Gelasian " system, but for the system which had 
in practice obtained for nearly three centuries — the 
practical superiority of the royal power. Henry was the 

incipere, a te quero consilium et ut t.ibi placet auxilium; qui, si illuc 
favente Deo ivero, post Deum tibi Romanam ecclesiam relinquo, ut 
earn et sicut sanctam matrem custodias et ad ejus honorem defendas. 
Quid tibi super his placet et quid prudentia tua divinitus aspirata 
decernat, mihi quantocius potes remittas, nam, si de te plus quam 
plurimi putent non sperarem, verba haec frustra proferrem." 



II] THE EMPIRE AND THE PAPACY 61 

heir of Charlemagne and Henry III, and the heir to 
their position of superiority. 

Thus conflict was inevitable, and it was in the midst 
of the struggle in 1081 that Gregory wrote his famous 
denunciation of kingship as of human and sinful — even 
diabolical — origin. "Itane dignitas a saecularibus — etiam 
Deum ignorantibus — inventa non subjicietur ei dignitati, 
quam omnipotentis Dei providentia ad honorem suum 
invenit mundoque misericorditer tribuit ? cujus Alius — 
sicut deus et homo indubitanter creditur — ita summus 
sacerdos, caput omnium sacerdotum, ad dexteram Patris 
sedens et pro nobis semper interpellans, habetur ; qui 
saeculare regnum, unde filii saeculi tument, despexit et 
ad sacerdotium crucis spontaneus venit. Quis nesciat : 
reges et duces ab iis habuisse principium, qui Deum 
ignorantes, superbia rapinis perfidia homicidiis, postremo 
universis pene sceleribus, mundi principe diabolo vide- 
licet agitante, super pares, scilicet homines, dominari 
caeca cupidine et intolerabili praesumptione affecta- 
verunt 1 ." We cannot say that these words were 
adopted to suit the controversy of the moment, for they 
occur in the most important of all Gregory's letters, in 
one that may properly be called the apology for his 
policy. And though one cannot find anything in his 
other letters to compare with their violence, the main 
idea of the human, and even sinful, origin of kingship 
can certainly be paralleled 2 . In the same letter he 

1 Vide Reg. vra. 21, pp. 456-7. 

2 Vide Reg. iv. 2, p. 243: " Sed forte putant, quod regia dignitas 
episcopalem praecellat. Ex earum principiis colligere possunt, quantum 
a se utraque differunt. Illam quidem superbia humana repperit, hanc 
divina pietas instituit. Ilia vanam gloriam ineessanter captat, haec 
ad coelestem vitam semper aspirat." 



62 THE EMPIRE AND THE PAPACY [CH. 

compares the inferior power of a temporal Emperor with 
that of an exorcist, that is to say, with the lowest but 
one of the minor orders. The exorcist is a "spiritual 
Emperor " over the demons — shall he not have power 
over those who are subject to the demons ? And if an 
exorcist, how much more a priest 1 . 

This last passage is especially interesting, because it 
contains the one actual quotation from S. Augustine to 
be found in Gregory's letters 2 . But that it is to 
Augustine that Gregory has gone back for this con- 
ception of kingship is of course indubitable. We are 
back once more in the old distinction between the 
earthly and the heavenly city. Priests, says another 
Papalist writer, excel kings as the angels, the sons of 
God, excel the sons of men — " filii autem hominum 
nuncupantur qui de terreno regno gloriantur 3 ." 

Gregory was by no means alone among the Papalists 
in tracing back kingship to a human foundation. Al- 
ready, as is well known, we have the idea of a compact 
between king and people, as the basis of the secular 
power 4 . But Gregory did not maintain merely the 
human origin of kingship ; its origin is sinful, even 
diabolical ; and it is not merely the origin of kingship, 
which he condemned, but the office itself. Now Gregory 

1 p. 459. 

2 Vide Mirbt, Die Stellung Augustines in der Publizistik der 
Gregorianischen Kirchenstreits , p. 34. 

3 Vide Honorius Augustodunensis (in Lib. de Lite, vol. in., in 
Monnmenta Germaniae Historica), pp. 66-7. 

4 Vide Manegold of Lautenbach, Ad Gebehardum Liber (Lib. de 
Lite, vol. i.), p. 365. And vide a very interesting passage in Gerhoh 
of Reichersberg (Lib. de Lite, vol. in.), pp. 345-6, on kings as 
"hominum creaturae," obtaining by priestly benediction the office 
"ad quod divina ordinatione assumpti sunt." 



II] THE EMPIRE AND THE PAPACY 63 

may not stand alone even here, but it was emphatically 
not the general Papalist position. 

Nor was it in reality what we may call the primary 
position of Gregory himself. It was a secondary position, 
on which he was compelled to fall back, when his 
primary conception of the proper relations between 
the temporal and spiritual powers was rejected — and 
naturally enough — by Henry. But if not in Henry, at 
any rate in Rudolf, Gregory found the king, whom he 
needed. How far Gregory really was from viewing the 
Imperium as the work of the devil comes out, as clearly 
as could be, in a letter written to Rudolf in 1073 \ 
"Licet ex praeteritis," he writes, "nobilitatis tuae 
studiis clareat, te sanctae Romanae ecclesiae honorem 
diligere, nunc tamen, quanto ipsius amore ferveas quan- 
tumque ceteros illarum partium principes ejusdem 
amoris magnitudine transcendas, litterae tuae nobis 
transmissae evidenter exponunt. Quae nimirum inter 
cetera dulcedinis suae verba illud nobis videbantur 
consulere, per quod et status imperii gioriosius regitur 
et sanctae ecclesiae vigor solidatur : videlicet ut sacer- 
dotium et imperium in imitate concordiae conjungantur. 
Nam sicut duobus oculis humanum corpus temporali 
lumine regitur, ita his duabus dignitatibus in pura 
religione concordantibus corpus ecclesiae spirituali lu- 
mine regi et illuminari probatur." At that date — 
Rudolf was not yet king — Gregory still had hopes of 
Henry, " quod ipsum in regem elegimus," as well as for 
the sake of his father. But, Gregory added, "concordiam 
istam, scilicet sacerdotii et imperii, nihil fictum, nihil 

1 Vide Reg. i. 19, pp. 33-4. Rudolf was not yet king. 



-V 



64 THE EMPIRE AND THE PAPACY [CH. 

nisi purum decet habere." Here is the key to the 
Papalist position. Gregory wished for the concord of 
the Sacerdotium and Imperium, if it could be pure and 
real, as he understood those words — that is to say, if 
the temporal power accepted the ultimate superiority of 
the Sacerdotium. The right place of the Imperium is 
within the " corpus ecclesiae," its duty to govern and 
illuminate in conjunction with, and in dependence on, 
the Sacerdotium. If it will not accept that position, 
it must be put outside the Church and rule in the 
earthly State. 

There are thus two distinct lines in the Papalist 
theories, which caimot be harmonised, because they 
are properly alternative. Primarily, we may say, the 
Papalists wished to maintain the temporal power within 
the Church, but in dependence on the spiritual power ; 
if that position of dependence were rejected, the temporal 
power must be put outside the Church 1 . And if the 
temporal power goes outside the Church, we return 
to the distinction between State and Church, and 
a distinction — this is the point of importance — which 
placed the sinful, even diabolical, State in antithesis to 
the holy Church. Now that was an antithesis which 
neither Gregory, nor the Papalists throughout the 
Middle Ages, were really ready to maintain. 

If we turn back for a moment to S. Augustine, we 
see that his whole condemnation of the State is con- 
cerned with the Pagan State. Augustine's De Civitate 

1 This is expressed, almost in so many words, by a Papalist poet : 
' ' Ergo vel ecclesiae membrum non dicatur | Caesar, vel pontine! summo 
supponatur." Vide Gualterus de Insula (in Lib. de Lite, vol. in.), 
p. 559. 



II] THE EMPIRE AND THE PAPACY 65 

Dei is, in part at least, a controversial work, an answer 
to the Pagan's complaint that the sack of Rome in 410 
had fallen in Christian days. Augustine set out, and 
his disciple Orosius followed him, to show that Rome 
had been no more fortunate in Pagan days. In a famous 
passage he condemns all kingdoms, without justice, as 
"fair, thievish purchases 1 ," and denies that justice 
is possible in the Pagan State. He refuses to allow 
that Cicero's definition of "respublica" could properly 
apply to Pagan Rome 2 . For Cicero showed that a 
State cannot exist without justice ; but the Pagan 
Romans were without justice — " for where man does 
not serve God, what justice can be thought to be in 
him ? " And though, by another definition of his own, 
he proves Rome to have been a true "respublica," he 
only does so by abandoning the criterion of justice, 
which would bar Rome, as it would the Empires of 
the Egyptians, Assyrians and others. " For in the 
City of the wicked, where God does not govern and 
men obey, sacrificing unto Him alone, and consequently 
where the soul does not rule the body, nor reason the 
passions, there is generally found wanting the virtue of 
true justice 3 ." 

True justice can exist only in the Christian State, 
and the Christian State — Christian Rome — is not " the 



1 Vide Lib. iv. chap. 4, col. 115. John Healey, the author of 
the first English translation of the Be Civ. Bei, translates "magna 
latrocinia" by "fair thievish purchases." His translation is by no 
means always clear or accurate, but like all sixteenth and seventeenth 
century English translations, very fine and vigorous. 

2 Vide Lib. xix. chap. 21, coll. 648-9. 

3 Vide Lib. xix. chap. 24, coll. 655-6. 

w. 5 



66 THE EMPIRE AND THE PAPACY [CH. 

Babylon of ' the West 1 ," the "head 2 " of the Civitas 
Terrena, but becomes merged in the Civitas Dei, 
which may lawfully use the earthly peace 3 on its pil- 
grimage, and which needs the Christian Emperor for its 
defence against infidels and heretics 4 . Augustine had 
a very real place for a Christian Emperor in his Civitas 
Dei. He was the opponent of the Donatists — and it 
was they, not Augustine, who had asked — " Quid est 
Ecclesia Imperatori 5 ? " The result is that, though 
Augustine could identify Pagan Rome with the Civitas ) 
Terrena 6 , it was impossible for the medieval Papalist, 

1 Vide Lib. xv. chap. 17 at end, col. 497, Lib. xvm. chap. 2, 
col. 561 and chap. 22, col. 578. 

2 Vide Lib. xv. chap. 5 — and cf. the comparison between the 
foundation of the Civitas Terrena by the fratricide of Cain and the 
foundation of Pagan Kome by the fratricide of Komulus. 

3 Vide Lib. xix. chaps. 17 and 26. 

4 Vide Lib. v. chap. 25, col. 173, where the Emperor Theodosius 
is praised, because in the troubled times of his reign, "ex ipso initio 
imperii sui non quievit justissimis et misericordissimis legibus 
adversus impios laboranti Ecclesiae subvenire, quam Valens haereticus 
favens Arianis vehementer aniixerat, cujus Ecclesiae se membrum 
esse magis quam in terris regnare gaudebat." 

5 Vide the passages quoted by Carlyle in op. cit. p. 149; cf. 
Gierke, Deutsche Genossenschaftsrecht, vol. in. p. 125. 

6 Ideally of course neither the Civitas Dei nor the Civitas Terrena 
is of any one place, date or nation — vide Lib. xiv. chap. 1, col. 403 — 
and Augustine particularly insists that there are "non quatuor, duae 
scilicet Angelorum totidemque hominum, sed duae potius civitates, 
hoc est societates, una in bonis, altera in malis, non solum Angelis, 
verum etiam hominibus constitutae" (Lib. xn. chap. 1, col. 349). 
But, in the controversial parts of the work especially, Pagan Home 
and the Christian Church tend to stand opposed as the two cities on 
earth— vide e.g. Lib. xxn. chap. 6, the comparison between the love 
that made Kome worship Eomulus its founder, and the faith in the 
divinity of Christ which makes the citizens of the heavenly City love 
its Founder. In Lib. xvm. chap. 2, col. 560, Augustine calls other 
kings and kingdoms ' ' velut appendices ' ' of the two great Empires of 



ll] THE EMPIRE AND THE PAPACY 67 

when Pagan Rome was long since dead, to revive the 
distinction between Church and State as the distinction 
between the Civitas Dei and the Civitas Terrena. 
Alone the development of the Antichrist legend had 
given Rome its holy task in the world's history, differ- 
entiating the Roman Empire from all the Empires 
which had gone before it 1 . Papalist theory left the 
Investiture struggle, not with a denial of the divine 
ordination of the State, not with the conception of 
a sinful State over against a holy Church, but clinging 
still to the single society, a Church-State, in which 
there are two divinely ordained powers, though not 
equal, since the Sacerdotium is to be decisively superior. 
Long after the Investiture struggle we shall see Pope 
Boniface indignantly maintain the impossibility of his 
denying the existence of the two divinely ordained 
powers. 

The Imperialists were on the defensive. Whereas 
before the Investiture struggle it was essentially the 
Papalist who appealed to Pope Gelasius, in order to prove 
the existence of the equal and co-ordinate powers, it was 
now, and for the rest of the Middle Ages, as essentially 



Assyria and Rome. And vide Robertson, "Regnum Dei" [Hampton 
Lectures, 1901), Lecture v. pp. 169-222. 

1 Augustine knows no such differentiation. As God gave the 
Empire to the Romans, so He gave it to the Assyrians and Persians, 
etc., vide Lib. v. chap. 21, coll. 167-8. And it is very interesting 
that Augustine does not commit himself to what became for the 
Middle Ages the generally accepted interpretation of the words in 
II Thess. 2 — "he who now letteth will let, until he be taken out of 
the way" — as referring to the Roman Empire. "Ego prorsus quid 
dixerit me fateor ignorare ' ' — he thinks they may ' ' non absurde ' ' apply 
to Rome, but does not pledge himself to this interpretation. Vide 
Lib. xx. chap. 19, coll. 685-6. 

5—2 



68 THE EMPIRE AND THE PAPACY [CH. 

the Imperialist 1 ; the Papalist now appealed to them 
rather to prove the greater burden imposed on the 
Sacerdotium, which was soon interpreted as meaning its 
higher dignity 2 . 

But the Imperialists were not merely on the defensive. 
They appealed to the past, and were as often arguing 
for the traditional supremacy of the temporal power, as 
for the independence and equality of the two powers. 
Of this the remarkable treatises of Gerhard of York 
are, of course, the best examples. He carried the war into 
the enemy's camp 3 . But he was not alone 4 . He, and the 

1 Vide e.g. Tract. Eboracensis v. (in Lib. de Lite, vol. in.), 
pp. 684-6. 

2 Vide e.g. Bernaldus Presbyter, Apologeticae Rationes (Lib. de 
Lite, vol. ii.), p. 97. 

:i Vide especially Tract, v. pp. 685-6, and Tract, iv. pp. 665-6. 

4 Wido of Osnaburg, De Controversia Hildebrandi et Henrici 
(Lib. de Lite, vol. i.), pp. 462-70, has a very notable— because up 
to a point quite correct — appeal to history, and with him should be 
compared the Dicta cujusdam de discordia Papae et Regis (Lib. de 
Lite, i.), pp. 454-60. Cf. also Petrus Crassus, Defemio Henrici IV 
(Lib. de Lite, vol. i.), pp. 435-7 — Gregory is injuring the memory 
of past Emperors "orthodoxae fidei," who, with the preachers, built 
up the Church ; and sometimes the Emperors did more ' ' imperando ' ' 
than the preachers "praedicando." Cf. also Tract, de Investitura 
Episcoporum (Lib. de Lite, vol. n.), pp. 503-4. Then they appeal 
to the past reverence of the Popes for the Emperors — and especially 
to Gregory the Great. The author of the treatise De TJnitate 
Ecclesiae servandae (Lib. de Lite, vol. n.), pp. 196-200, denies the 
excommunication of Arcadius by Pope Innocent — he can find no 
authority for it. And it is worth noting how Petrus Crassus, p. 449, 
makes use of the example of S. Ambrose's refusal of the Eucharist 
to Theodosius — a favourite example with the Papalists — to show 
how the Pope should provide for the "aedificatio animarum," not, as 
Hildebrand, "in occisione gladii." Of course he does not mention 
the refusal of the Eucharist — Ambrose merely "summoned him 
(Theodosius) to the Church, prescribed penance and took pains to 
salve him in soul and body." Hugo of Fleurus, in his De Regia 



II] THE EMPIKE AND THE PAPACY 69 

other supporters of the temporal power no less, while 
rebutting the Papalist claims to supremacy, took their 
stand on the equality and co-ordination of two powers ; 
but they then went on to argue for a very real supremacy 
for the temporal power, appealing repeatedly to history 1 
to show both the obedience of former Popes and the 
supremacy of former Emperors down to Henry III. 
We must remember that, if the Antipope Clement were 
to be defended, it was especially necessary to vindicate 
for Henry IV the position which his father, Henry III, 
had occupied at Sutri. 

After the treatises of the anonymous Yorkist, none 
of the works produced by the Investiture struggle are 
more remarkable than the Defensio Regis of Petrus 

potest, et sacerd. dignit. (Lib. de Lite, vol. n.) wrote specially to 
refute Gregory's condemnation of kingdoms, as of sinful and diabolical 
origin — he quotes Gregory's words at the opening of his treatise 
(p. 464). 

1 History is pretty well bandied about between the Imperialists 
and the Papalists. The Papalists compare the virtuous Emperors 
and kings of old times with the wicked ones of to-day — "Hii con- 
structors fuerunt prius ecclesiarum, | Vos destructores penitus nunc 
estis earum." Vide Hugo Metellus, Certamen Papae et Regis, p. 715. 
But Gregory himself said that in all history he could not find examples 
of twelve saintly kings. Further the amazing statement of Bonizo, 
bishop of Sutri, that Charlemagne was never crowned Emperor, must be 
taken in connection with the history which he gives of the Patriciate, 
and especially his version of Henry Ill's "Patricialis tyrannis." 
" Quid namque est, quod mentem tanti viri ad tantum traxit delictum, 
nisi quod crediderit per patriciatus ordinem se Bomanum posse 
ordinare Pontificem?" But it will be said, he continues, that 
Charlemagne himself was Patrician; to which he answers that, in 
Charlemagne's time, Constantine and Irene governed the Boman 
Empire — and therefore there was no higher title left for Charlemagne 
than "father and protector of the Boman city." Vide "Liber ad 
Amicum" (in Jaffe, Monumenta Gregoriana), Lib. in. pp. 617-8, and 
Lib. v. p. 629 and ff. 



70 THE EMPIRE AND THE PAPACY ' [CH. 

Crassus. It is full of appeals to Roman Law, to the 
Code and Novels in particular— for Crassus is before 
the period of the Bolognese Glossators, and does not 
seem to know the Digest, as he does the other parts of 
the Corpus Juris. But he bases his whole position on 
law 1 . Gregory is guilty according to both laws, and 
should be judged and deposed by them — a safer and 
, abetter way than by arms 2 . The treatise announces 
! the entry of Roman Law into medieval political 
thought. 

We have mentioned that in a later part of this 
essay we shall see Pope Boniface maintain the impos- 
sibility of his denying the existence of the two powers 
— the reason he gives is that he is a lawyer of forty 
years standing. The theory of the two equal and 
independent powers — though Pope Boniface of course 
denied most emphatically the equality and independence 
! of the temporal power — came to be essentially the 
position taken up by the lawyers 3 . Though the Glos- 
sators tried to force the facts of the twelfth century into 
theories drawn from a strict interpretation of the Roman 
texts, they did not attempt to maintain the superiority 
of the temporal power alike in the spiritual sphere 
and in the temporal — a theory they could with little 
difficulty have drawn from the Corpus Juris. 

1 Henry is king not "vi et armis," but "legibus," vide p. 434. 
Cf. p. 443 and ff. where he wishes to show the Saxons that Henry 
is their lawful king; cf. pp. 452-3. So p. 435 Hildebrand has become 
Pope "Julia et Plautia lege con tempta." 

2 Vide pp. 438-41. Cf. p. 452 — Hildebrand "sanctorum canonum 
contemptor," naturally rejoices rather in arms than laws. "Quis 
igitur huic legum inimico hanc poenam merito, qui filio (Henry IV) 
necem paravit, legibus addictam esse non censeat?" 

3 Vide Gierke, Pol. Theories of the Middle Age, Note 38, pp. 118-9. 



Il] THE EMPIRE AND THE PAPACY 71 

Justinian recognises the Imperium and Sacerdotium 
as the twin gifts of God, proceeding from the same 
principle for the adornment of human life 1 and differing 
little one from another 2 . The Sacerdotium " rebus 
divinis inservit," the Imperium "humanas res regit." 
But the spheres are not " distinct and separate " ; the 
Imperium does not restrict itself to temporal matters. 
"Nihil imperatoribus," says Justinian 3 , " aequae curae 
fuerit atque sacerdotum honestas ; si quidem hi etiam 
pro illis semper deo supplicant. Nam si alterum omni 
ex parte integrum est et fiducia dei praeditum, alterum 
recte et decenter rempublicam sibi traditam exornat, 
bonus quidem concentus existet, qui quicquid utile est 
humano generi praebeat. Nobis igitur maximae curae 
sunt et vera dei dogmata et sacerdotum honestas, quam 
si illi custodiunt, per ipsam magna bona a deo nobis 
datum in nosque et quae habemus firmiter possessuros 
et quae nondum aclepti sumus insuper adquisituros esse 
confidimus." 

1 Vide Justinian, Novellae Const, vi. Praefatio, "Maxima inter 
homines dei dona a superna benignitate data sunt sacerdotium et 
imperium, quorum illud quidem rebus divinis inservit, hoc vero 
humanas res regit earumque curam gerit: quorum utrumque ab uno 
eodemque principio proficiscitur et humanam vitam exornat." 

2 Vide Nov. Const, vn. 2. Justinian is here legislating against 
the alienation of "res ecclesiasticae " and makes certain exceptions. 
He allows an exchange in certain circumstances between the Emperor 
and a Church or religious institution, on the condition that the 
Emperor gives in return something of equal or greater value than the 
thing taken. In such a case the exchange is to hold good and no one 
concerned in it to be amenable to any penalty imposed by former laws 
— "utique," he continues, "cum nee multo differant ab alterutro 
sacerdotium et imperium, et sacrae res a communibus et publicis, 
quando omnis sanctissimis ecclesiis abundantia et status ex imperialibus 
munificentiis perpetuo praebetur." 

3 Immediately following the passage quoted above note 1. 



72 THE EMPIRE AND THE PAPACY [CH. 

The Middle Ages referred repeatedly to these Novels, 
but they had to abide by the phrases which place the 
two powers together as the " dona Dei," not differing 
much one from another, and to shut their eyes to the 
obvious superiority over both spheres, which is expressed 
in the passages, taken as a whole. Here and there in 
the Middle Ages the plea of superiority for the temporal 
power would be made — above all in the lifetime of 
Bartolus by Marsiglio and Occam. But the plea was still, 
as in the Investiture struggle, for the superiority in the 
one society, the Ecclesia or Respublica Christiana, not 
for the superiority of State over Church. The Byzantine 
theory of the absorption of the Church in the State 
rarely made itself heard 1 , just as the antithesis of 
Church and State, as the Civitas Dei and Civitas 
Terrena, which Gregory had found himself compelled to 
adopt, was, in general, rejected by the Papalist theory — 
even when at its highest under Boniface VIII 2 . 

We may expect, then, that Bartolus will place the 
Empire and Papacy side by side as separate and dis- 

1 On Frederick II's plans vide Huillard-Breholles, Vie et Corre- 
spondance de Pierre de la Vigne, pp. 204-19. And vide Occam's 
reference to Justinian (in Goldast, Monarchia S. Romani Imperii, 
vol. ii. p. 329). Kadulf de Colonna, a Papalist, acknowledges that 
Charlemagne, as Patrician, had power both to order the apostolic 
see and to appoint bishops. The former power he did not use, but 
did not renounce — the latter he used. Finally Lewis the Pious gave 
up both rights ' ' expresse. ' ' Vide his tract. ' ' De Translatione Imperii ' ' 
(in Goldast, op. cit. vol. i.), chap. 6. 

- In this context it is very interesting to note how Augustinus 
Triumphus, Summa de Eccles. Pot., Quaest. xlvi. art. 1, refers to 
S. Augustine's comparison of kingdoms without justice as "magna 
latrocinia," to deduce the necessity of obedience from all men to 
the Papacy, and how John of Paris, De Pot. Regali et Sacerdot., 
chap, xix., answers this Papalist argument by pointing out that 
S. Augustine was referring to Pagan states. 



U] THE EMPIRE AND THE PAPACY 73 

tinct, but co-ordinate, powers. "Quidam sunt habentes 
jurisdictiones separatas et distinctas, ita quod una ab 
alia non dependet, nee sunt sub eodem domino, ut Papa 
et Imperator 1 ." Both are of Divine origin — "Impe- 
rator et Ecclesia processerunt a Deo tamquam a causa 
efficiente 2 "; and they are nearly related one to another 3 
— "non multum differunt, tamen in aliquibus differunt V 
This conception of the relations of the Empire and 
Papacy may be illustrated throughout his commen- 
taries. "Imperator et Papa," "Princeps et Papa" — 
the two go together; the Pope is another "Princeps" of 
the Law Books 5 . Thus "Papa et Imperator possunt 
concedere regibus nostris regna quae tenentur per 
Saracenos, quae jam (sic) fuerint nostra 6 ." We have 
mention of captains of war, "qui per Papain vel 
Principem mittuntur ultra mare ad expugnandum 
Saracenos 7 ." So, when Bartolus says that statutes 

1 Comment, on Dig. Nov. Part n. (D. xlviii. 17. 1), p. 528. 

2 Comment, on Dig. Vet. Part i. (Prima Constitutio), p. 8, § 14. 
Cf . Comment, on Authenticum, Collatio i. (Quomodo oporteat Episcopos, 
§ Maxima Quidem), p. 25, § 1 : " Imperium et Sacerdotium processerunt 
a Deo et eodem tempore." 

3 Thus "dicuntur quodam modo fraternizare," vide Comment, on 
Dig. Vet. Part i. (Prima Constitutio), p. 8, § 13. Elsewhere the 
Church is called the sister of the Empire. Vide below, p. 95. 

4 Comment, on Authenticum (De non alien, aut permut. rebus 
ecclesiast. § Sinimus), p. 28: "Dicitur enim hie quod Imperium et 
Sacerdotium aequiparantur....Sed respondeo, quod licet Imp. et Sac. 
non multum differant, tamen in aliquibus differunt." 

5 In Durandus we find this definitely stated. Vide his Speculum 
Juris (Lib. n. Partic. in., de Appellationibus, § Videndum), p. 480: 
"Videndum restat a quibus appellari possit. Et quidem generaliter 
ab omnibus tarn delegatis, quam ordinariis....A Principe autem, scilicet 
a Papa vel Imperatore, non appellatur." 

6 Comment, on Dig. Vet. Part n. (D. xix. 1. 57), p. 391. 

7 Comment, on Codex, Tres libri (C. xn. 12. 1), p. 125. 



74 THE EMPIRE AND THE PAPACY [CHJ 

against the liberty of the Church or ecclesiastical per- 
sons are invalid, we are told that such statutes are. 
those "contra privilegia concessa ecclesiis seu ecclesi- 
asticis personis per Principem seu Papam 1 ." Similarly 
"scripta seu authoritates approbatae ab Imperatore vel 
summo Pontifice probant et concludunt 2 ." 

Sometimes the correspondence is carried further. 
The Senate is made to correspond with the college of 
cardinals, the Praeses Provinciae with the Papal legate. 
"Nota quod ad famam solus Princeps et senatus potest 
restituere, et eodem modo Papa et collegium, quo ad 
spiritualia, et quo ad temporalia in his qui sunt Eccle- 
siae subjecti; aliter secus secundum Innocentium 3 ." 
Elsewhere, after saying that "si dominus legatus venit 
ad civitatem Perusii et hospitatur in domo domini 
episcopi," the bishop does not from the fact of the 
legate's presence lose his own jurisdiction, Bartolus 
refers to another text to show that "defensor civitatis non 
perdit jurisdictionem suam per praesentiam praesidis 4 ." 

1 Comment, on Codex, Part i. (C. i. 2. 12, Nova const. Fred. II, 
Cassa et Irrita), p. 42, § 3. 

2 Comment, on Dig. Vet. Part n. (D. xn. 1. 1), p. 5, § 21. Cf. 
Comment, on Infort. Part n. (D. xxxm. 10. 9), p. 253, in the same 
matter. Examples can be multiplied on other matters as well — "Non 
creditur nunciis sedis Apostolicae vel Principis nisi habeant literas," 
in Comment, on Codex, Part i. (C. i. 15. 1), p. 93, § 2. Or vide Com- 
ment, on Codex, Part n. (C. vn. 62. 6), p. 227, § 4. Comment, on Dig. 
Nov. Part n. (D. xlv. 1. 136, § Cum quis), p. 157, § 1. 

:i Comment, on Dig. Vet. Part i. (D. in. 1. 1, § De Qua re), p. 322, 
§ 1. In the same Commentary (D. i. 16. 12), p. 131, § 2: "Legati 
cardinales scilicet qui mittuntur ab ecclesia Eomana tenent locum 
proconsulis," which is not inconsistent with the correspondence of 
the whole College to the Senate. And in D. i. 11. 1, p. 109, the 
"praefecti praetorio aequiparantur cardinalibus et episcopis, quod 
est notabile propter multa et ideo nota earn." 

4 Comment, on Codex, Tres libri (C. xii. 41. 3), p. 140. Cf. Com- 



II] THE EMPIRE AND THE PAPACY 75 

But if we continue, we find that these two powers 
are considered not merely as separate jurisdictions, but 
rather as separate jurisdictions in separate territories. 
"Quaedam sunt territoria, quae sunt separata*^, nee 
tamen sub eodem domino, ut territoria Imperatoris et 
Papae 1 ." Bartolus is here discussing whether "citatio 
verbalis " can be made "extra territorium citantis." Cino, 
says Bartolus, decided that it could, but against this 
stands a decretal, to which Cino said, contemptuously, 
that no answer was to be given, but that it might pass 
with the other errors of the canonists 2 . Bartolus, how- 
ever, who will not speak of the canonists in this way, 
offers a solution. "Quaedam territoria sunt distincta, 
sub uno tamen domino sunt omnia, ut Imperium Roma- 
num est divisum per praesidatus. Tunc unus praeses 
potest citare in provincia alterius, quae tamen est sub 
eodem domino; ita loquitur hie. Quaedam sunt terri- 
toria quae sunt separata, nee tamen sub eodem domino, 
ut territoria Imperii et Papae, et tunc non potest fieri 
citatio de uno territorio ad aliud. Ita sustineo istud 
decretalem." 

The reference to the decretal " Pastoralis Cura " and 
to Cino shows that Bartolus has in mind the famous 
dispute which occasioned this decretal of Clement V. 

ment. on Authenticum (Collatio n. Ut jud. sine quoquo suffr. fiant. 
Omnes dignitates, § Illud autem), p. 33, § 102, " Imperator potest unire 
duas provincias....Et sic Papa potest duos episcopatus unire." 

1 Comment, on Codex, Part i. (C. i. 3. 31), p. 75. 

2 Ibid.: " Secundo nota ex ista § 'Verum si apparitor' (i.e. in 
this law C. i. 3. 32) quod citatio verbalis possit fieri extra territorium 
citantis. Et ita determinat Cynus in quadam disputatione quam fecit. 
Sed de hoc est casus in contrarium (extra, de re jud. in c. pastoralis 
in Clementinis). Ad hanc decretalem dieit Cynus non est dare 
responsum, sed, dicit, pertranseat cum aliis erroribus Canonistarum." 



76 THE EMPIRE AND THE PAPACY [CH. 

The Emperor Henry VII had declared war on Robert, 
king of Naples, the leader of the Papalist party in 
Italy. Clement intervened and ordered the suspension 
of hostilities, on the ground that Henry was bound by 
his oath of fealty to respect the vassals of the Church, 
such as the Pope claimed the king of Sicily to be. 
Henry of course refused to recognise himself as bound 
by any oath of fealty to the Pope and summoned Robert 
to appear before him at Pisa. Robert not appearing, 
Henry declared him guilty of treason, sentenced him to 
be deprived of his crown and put him to the ban of 
the Empire. The Emperor issued his constitution 
"Ad Reprimendum" denning treason, and the Pope 
replied with this decretal "Pastoralis Cura." Henry 
soon after died ; but the decretal was included among 
the Clementines, while the constitution was placed as 
" Collatio XI." in the Authenticum, and glossed by Bar- 
tolus himself. The legal question at issue, whether 
citation is valid "extra territorium 1 ," continued to be 
widely discussed, and Bartolus considers it again in his 
Commentary on the Digest 2 . He discusses whether a 

1 There was also a question whether the citation of Robert was 
valid as being "ad locum suspectum." Vide Comment, on Big. Nov. 
Part ii. (D. l. 7. 4), p. 666. 

2 Comment, on Dig. Nov. Part n. (D. xlviii. 17. 1), p. 528. "Facit 
ad quaestionem illam utrum judex istius civitatis (Perugia) possit 
citare aliquem extra territorium suum existentem per suum nuncium 
vel per literas. Decretalis dicit quod non...ubi Papa reprobat senten- 
tiam Imperatoris latam Pisis, ubi per edicta citaverat regem Robertum 
existentem in terris ecclesiae, et sic in alieno territorio. Dicit enim 
Papa, quod ipse Papa debet requiri ab Imperatore ut citaret regem in 
suo territorio; non autem potuit ipse Imperator citare. Cynus dis- 
putavit istam quaestionem Senis (Siena) et dicit quod ista citatio, quae 
sit verbo vel per edicta, potest fieri de eo, qui est in alieno territorio.... 
Citatio vero talis, capiendo personam, non posset fieri.... Sed ad illam 



II] THE EMPIRE AND THE PAPACY 77 

judge of Perugia can cite anyone outside the territory 
of Perugia. The decretal "Pastoralis Cura" says no; 
and this time Bartolus definitely mentions the dispute 
between the Emperor Henry and king Robert. Again 
he gives Cino's opinion and records his contempt for 
the canonists. For himself, however, he has always 
defended the decretal, offering as a sort of apology 
that he is "in terris Ecclesiae"; and so, he says, the 
decretal is true "de jure." His solution is the same 
as that given in the passage quoted above. In the 
case of judges whose jurisdictions are separate, yet 
all dependent "ab uno principe, ut cliversi praesides 
diversarum provinciarum constituti a Principe vel ab 
uno rege; time unus potest citari 1 in territorio alterius 
verbo... quasi hoc videatur permissum ab illo Principe, 
qui eos constituit...Quidam sunt habentes jurisdic- 
tiones separatas et distinctas, ita quod una ab alia non 
dependet, nee sunt sub eodem domino, ut Papa et 
Imperator; tunc unus non potest citare in territorio 
alterius. Ita loquitur decretalis Cura Pastoralis, sed 
debet requirere ilium judicem, in cujus territorio est 
(i.e. the accused) ut ilium citet." Comparing these two 
quotations we see that Bartolus, accepting the decretal 
of Clement V, considers that the kingdom of Naples 
was within the "terrae Ecclesiae," and that therefore 
the Emperor could not cite king Robert there, without 
the permission of the Pope. Of course the Emperor 
claimed that Naples was a part of the universal Roman 

decretalem, elicit ipse, non potest dari responsum in pace, sed pertran- 
seat cum aliis erroribus canonistarum. Ita dicit ipse. Ego consuevi 
tenere illam decretalem, tamquam existens in terris Ecclesiae, dicens 
earn esse veram de jure." 

1 Sic. "Citare" is obviously meant. 



78 THE EMPIRE AND THE PAPACY [CH. 

Empire, though he also claimed that Robert was bound 
to appear before him, being his direct vassal in regard 
to certain lands held in Piedmont; and Cino and the 
lawyers on Henry's side brought arguments to prove that 
citation "extra territorium 1 " is valid, therefore in part 
acknowledging the Pope's claim over Naples. How- 
ever it is with the views of Bartolus that we are here con- 
cerned, and they are clear. The territories of the Pope 
and of the Emperor are distinct like their jurisdictions. 
This territory of the Church is, as we saw above 2 , 
still a part of the Roman Empire and its inhabitants 
a part of the Populus Romanus, since it was granted 
out of the Empire by the Emperor to the Church. 
And thus it may be said that the world is divided 
between these two territories; what is not in the terri- 
tory of the Church, must be in the territory of the 
Empire, except a few towns like Perugia, which are 
freed by privilege from both 3 . 

1 Unfortunately Cino's disputatio held at Siena at the very time of 
the difference between Henry and Clement, and which Bartolus has 
mentioned, is lost. According to Bartolus Cino maintained the validity 
of citation extra territorium "quae fit verbo," but not "capiendo 
personam." But it seems that he also denied that Naples was in 
" the territory of the Church." Vide Chiapelli, Vita e Opere Giuridiche 
di Cino da Pistoia, pp. 126-30. On the question of the Pope's claim 
of an oath of fealty from the Emperor, vide Hugelmann, "Die 
deutsche Konigswahl im Corpus Juris Canonici" (no. 98 of Gierke's 
Unter suchung en) , p. 112 and ff. 

2 Vide above, p. 26. 

3 ' ' Facit haec lex quod civitas Perusina non subsit Ecclesiae nee 
Imperio. Et si dicas, quidquid non subest Imperio, est sub Ecclesia, 
concedo, nisi civitas aliqua non subsit Ecclesiae ex privilegio concesso. 
Sed civitas Perusina est hujusmodi : nam Imperator donavit earn 
Ecclesiae, seu permutavit cum ea: et ex privilegio Ecclesiae liberavit 
earn." Vide Comment, on Codex, Tres libri (C. x. 31. 61), p. 44. 
There is a note on this passage by Scalvanti, " Un opinione del Bartolo 



Il] THE EMPIRE AND THE PAPACY 79 

This territorial conception of the Empire and Papacy 
does not of course exclude the conception of the two 
supreme powers, each with its own sphere of temporal 
and spiritual matters respectively. For example, in the 
question of legitimation Bartolus draws two distinctions. 
As far as " temporalia " are concerned, the Emperor can 
legitimate ; not, as regards " spiritualia." But, even as 
regards "temporalia," the Emperor cannot legitimate 
those who are not his subjects, that is to say in the 
territory of the Church; nor can the Pope legitimate, as 
regards "temporalia," in the territory of the Empire 1 . 

We see how the two conceptions meet one 
another. The Emperor legitimates as regards " tempo- 
ralia," the Pope as regards " spiritualia." The Pope also 
legitimates as regards "temporalia" in his distinct terri- 
tory, but here the correspondence breaks down. Bar- 
tolus cannot maintain that the Emperor can legitimate 
as regards " spiritualia" in the territory of the Emperor. 
Consequently, though the universal activity of the 



sulla liberta Perugina" (in Bolletino della JR. Deput. di storia patria 
per rUmbria, vol. n. p. 59 and ft*.). 

1 Comment, on Codex, Part i. (C. v. 5. 6, Auth. Ex complexu), 
p. 534, § 5: "Quaerit gl. utrum illi spurii possint legitimari per 
principem. Gl. dicit quod sic et bene.... Quod potest esse verum 
quantum ad temporalia, sed quantum ad spiritualia non. Nee Papa 
quantum ad temporalia potest in terris Imperii." Cf. Comment, on 
Dig. Vet. Part n. (D. xxm. 2. 57), p. 476: "Nota quod Imperator 
potest legitimare filios....Quod sine dubio est verum quo ad tempo- 
ralia; sed quo ad spiritualia secus. Nee Imperator legitimat quo ad 
temporalia inter non sibi subditos." In Consilium 75, p. 50, § 4, on 
the question whether ' ' legitimatio quod fieret ab Imperatore vel ab 
alio habente potestatem ab ipso valeat in terris Ecclesiae immediate 
subjectis," B. does not decide, but gives Innocent's decision against 
its validity, Jac. de Belvisio's for, whose opinion "videtur sequi 
Joh. Andreae." 



80 THE EMPIRE AND THE PAPACY [CH. 

Emperor, in temporal matters, is limited, by the con- 
ception of these "jurisdictions et territoria distincta," 
to the territory of the Empire, the universal spiritual 
activity of the Pope must reach beyond his own distinct 
territory and be universally valid. 

All this is further illustrated by Bartolus' treat- 
ment of the Canon Law. Canon Law was, with Roman 
Law, the fundamental material with which he worked, 
though we have seen that he considered it as dependent 
on, and therefore in a sense inferior to, the Civil Law. 
He did not, like Baldus and other legists, write any 
commentaries upon it. But he cited it, as decisive, 
authoritative, as he did the Justinian Law Books ; he 
did not merely adduce it as an illustration, in the 
manner in which he cited "statuta." He had none of the 
hatred which Cino 1 and some other legists felt for the 
canonists. We have seen him defend a decretal and 
the canonists from Cino's contempt. He may often 
have disagreed with the canonists, but he was always 
respectful to their opinions; and generally, where 
" spiritualia " were under discussion, he was ready to 
stand by their judgment 2 . 

Where Canon Law itself, apart from its commen- 
tators, is concerned, it is in spiritual matters always to 
be preferred to the Civil Law. Just as the Pope's 
jurisdiction in spiritual matters is universal, while the 
Emperor's temporal jurisdiction is limited to the terri- 
tory of the Empire, so Canon Law, in so far as it relates 

1 Vide, for the mutual hatred of Cino and the Canonists, Chiapelli, 
op. cit. p. 130 and p. 142 and ff. Later writers reprove him, Baldus 
among them. Vide also Gierke, Deutsche Genossenschaftsrecht, vol. 
in. p. 354 and note 2. 

2 For Bartolus and the canonists, vide Appendix B, below. 



II] THE EMPIRE AND THE PAPACY 81 

to " spiritualia," is of universal validity above the Civil 
Law, while Civil Law, even in temporal matters, bows 
to the Canons in the territory of the Church. " Quaero 
ergo quando lex contradicit canoni, vel econtra, cui sit 
standum. Gl. hie tangit, et videtur quod sit standum 
canoni... Tu die: aut loquimur in spiritualibus et per- 
tinentibus ad ficlem, et stamus canoni. . .Aut loquimur in 
temporalibus ; et tunc aut in terris subjectis Ecclesiae: 
et sine dubio stamus decretalibus. Aut in terris sub- 
jectis Imperio : et tunc aut servare legem est inducere 
peccatum, ut quod praescribat possessor malae fidei: 
et tunc stamus canonibus...Aut non inducit peccatum: 
et tunc stamus legibus 1 ." 

The abstract rule here laid down is confirmed by 
frequent decisions of Bartolus himself. Thus in dis- 
cussing "An quando quis dicit judicem suspectum, 
sit inferenda causa," — "omnes nostrae glossae," says 
Bartolus 2 , "et doctores juris civilis clicunt quod non, et 
illud consului in quadam civitate Imperii. Canonistae 
contra...unde in terris Imperii tenetur opinio istius 
glossae." Again, "de jure canonico," he says 3 , dis- 
cussing a law of the Code, "ista lex est correcta, quia 
instantia litis non perit triennio. Ideo ilia observatur 
in terris Ecclesiae, haec vero in terris Imperii." Finally 
we may give an example in which "spiritualia" are 
concerned. Bartolus is considering 4 " relic ta ad pias 

1 Comment, on Codex, Part i. (C. i. 2. 12), p. 41, § 2. It is note- 
worthy that in this passage all the authorities given by Bartolus are 
from the Canon Law. I have not thought it necessary to transcribe 
them, but have marked their omission by dots. 

2 Comment, on Infort. Part n. (D. xxxvi. 1. 4), p. 421, § 2. 

3 Comment, on Codex, Part i. (C. in. 1. 11), p. 305, § 1. 

4 Comment, on Codex, Part i. (C. i. 2. 1), p. 32, §§ 79-81. 

w. 6 



82 THE EMPIRE AND THE PAPACY [CH. 

causas." "Quaero an ea quae supra dicta sunt in dis- 

ponente ad pias causas in mortis articulo sint vera 

etiam in quolibet disponente constitute- in non mortis 

articulo, ita quod si Imperator disponeret contrarium, 

non valeret. Respondeo in dispositionibus factis ad 

pias causas, sive per constitutum in mortis articulo, 

sive non, nulla requiritur juris civilis solemnitas...dum 

tamen talis dispositio non repugnet bonis moribus seu 

pietati...Et etiam si Imperator constitueret contrarium, 

non valeret, et omnes leges statuentes contrarium non 

essent servandae. Quod probo, quia leges factae super 

rebus pertinentibus ad pia loca vel piis actibus depu- 

tatis non valent nisi authoritate ecclesiastica fuerint 

confirmatae...Praeterea in his quae spiritualia sunt vel 

in quorum observatione emergunt peccata, jura canonica 

praevalent legibus." Bartolus then goes on to show 

that "relicta ad pias causas" are a spiritual matter, 

in that remission of sin is thereby obtained. In this 

matter, therefore, "praevalent canones legibus." He 

mentions two extravagants to show that this is "jure 

canonico expressum" — "in quibus, licet specialiter ex- 

primatur de numero testium, tamen generaliter dicit 

quod talia relicta non debent judicari secundum leges 

humanas, sed secundum sacros canones et jura divina 1 ." 

Further the "dicta Apostoli" prevail over the "dicta 

Imperatoris," and Bartolus quotes S. Paul (Galatians) 

and the Gloss to the Magister Sententiarum (Peter 

Lombard) to prove that "relicta ad pias causas" are 

1 Note also § 83 at the end of the Commentary on this law : ' ' Ex 
quibus concludo quod, non obstante aliqua lege communi, munieipali 
vel imperiali, facta vel fienda, relicta ad pias causas debent judicari 
secundum canones et jura divina et naturalia, seu gentium, et non 
secundum leges . " 



II] THE EMPIRE AND THE PAPACY 83 

not bound by the " solemnitates " of Civil Law. "Item 
ex eo quod glossa (i.e. to the Sentences) dicit quod est in 
authoritate canonum, apparet quod omnes debent illud 
observare, sive in terris Ecclesiae, sive Imperii" — mean- 
ing, as is clear from all that goes^before, that it must be 
obeyed both in the territory of the Church and of the 
Empire, not because it is in the Canons, but because it 
is a spiritual matter, in that it concerns the remission 
of sin 1 . 

Provided, then, that we remember the two distinct 
conceptions of these two powers, the Papacy and the 
Empire, which we may call the universal and the terri- 
torial conceptions, the views of Bartolus on their relations 
are so far logical and consistent; though, as we have seen, 
the exact balance between the two powers is destroyed 
in favour of the Papacy by the fact that the universal 
spiritual jurisdiction of the Pope and the Canons, unlike 
the universal temporal jurisdiction of the Emperor and 
the Civil Law, is never restricted to one territory. 

In all this Bartolus was not merely constructing 
theories; he was writing with his eyes, as usual, fixed 
upon Italy, and interpreting very closely the actual 
conditions there existing. In the first place, in Italy, 
as in the rest of western Europe, the validity of the 
Canons over secular laws was, in spiritual matters, 
universally recognised. Canon Law was administered 
all over western Europe in its own spiritual courts. 
The validity of Civil Law was not nearly so universal. 

1 Cf. Comment, on Dig. Nov. Part i. (D. xli. 3. 5), p. 293, § 8: 
"De jure vero canonico superveniens mala fides usucapionem vel 
praescriptionem interrumpit, cui juri canonici est standum ideo quia 
tangit peccatum." 

6—2 



84 THE EMPIRE AND THE PAPACY [CH. 

Outside .of Italy and the Pays du droit ecrit in France, 
Roman Law was not yet anywhere received. In Italy 
itself, Civil Law was not the only temporal law under 
which men lived. The clergy did not, here as else- 
where. Among laymdn there were still some living 
under Lombard Law 1 . Naples had its laws. The cities 
had their statutes. We shall examine later in this essay 
the relation of these to Roman Law, and we shall see 
how the Civil Law occupied, as it were, an international 
position in Italy, supplementing and correcting the 
Statuta. But on the other hand, though the Barons 
of England might declare that they would have no 
changes in the laws of England, and though Wyclif at 
the end of this century might plead that English, not 
Roman Law, should be taught at Oxford 2 , these facts 
themselves are eloquent testimonies that men were 
looking ever more favourably on Roman Law, were 
tending to regard it everywhere as the temporal law, 
the most divine and reasonable of temporal laws and so 
superior to all local laws. 

Then again, territorially, Canon Law was actually 
the law of the Church lands in Italy, for laymen and 
clerks alike; or rather it occupied in the lands of the 
Church the same position as Roman Law in the rest 
of Italy — an "international" position to conflicting, or 
supplementary to insufficient, local legislation. There 
were both pontifical and legatine constitutions for the 
states of the Church; where they failed, it was the 

1 Vide Pertile, Storia del diritto italiano, vol. n. Part 2, pp. 63-9. 
He quotes a passage on p. 67, note 29, from Lucas de Penna, a con- 
temporary of Bartolus, saying that in Naples "multi utuntur eo jure." 

2 Vide Maitland, English Laiv and tlie Renaissance, Note 20, pp. 
52-4. 



ll] THE EMPIRE AND THE PAPACY 85 

Canon Law that supplemented them; the Civil Law 
only where the Canon Law itself was insufficient; so 
that in case of difference between the two laws, the 
Canon Law prevailed over the Civil Law 1 . 

There was thus ample warrant for taking Canon 
Law both as a universal spiritual law and as the terri- 
torial law of the territories of the Church. But in fact 
even, these two distinctions did not quite cover all cases. 
A matter might be both spiritual and temporal, and be 
cognisable before both a lay and a clerical court. Bartolus 
is quite aware of the difficulty and allows for it; but 
the fact that there were cases, in which it was uncertain 
which court and which law should have cognisance of 
them, or which were cognisable before both courts and 
laws, does not destroy the general distinction between 
the two laws which Bartolus makes. 

His view of the Canon Law is also important 
because it marks the end of a period in the relations 
between the Canons and Civil Law. The violent 
hostility was over on both sides. Roman Law ceased 
to be suspected by Popes and kings ; and the great 
lawyers, who followed Bartolus, accepted the Canon 
Law as he did. The world was preparing for the great 
reception of Roman Law, and all the theories of Bartolus 
tended, as we shall see, to make that reception possible. 

His attitude to the canonists is well worth noting. 
The enormous influence which he was to wield over 
the next centuries was bound to be greatly ad- 
vanced by the fact that his Imperialism — in some 
regards extreme — was tempered by an equally extreme 

1 Vide Pertile, op. cit. vol. n. Part 2, pp. 72-4, and p. 92, note 
104. 



86 THE EMPIRE AND THE PAPACY [CH. 

tenderness of giving offence to the Church and its laws. 
The enmity still felt for Cino by later canonists, like 
Panormitanus, would have been a great, very great, 
obstacle in the way of his influencing later thought, 
had his reputation, and perhaps we may say, his genius 
(as a lawyer), been equal to those of Bartolus. But the 
two were of different epochs; and the new epoch of 
concord between the two laws began with Bartolus. 

Except for the inherent superiority of " spiritualia," 
Bartolus has so far maintained the clear separation of 
the Empire and Papacy, extending that separation to 
jurisdictions, territories and laws. But, living in the 
fourteenth century, Bartolus was bound to consider the 
matter further. The Papacy did not claim separation, but 
insisted on its superiority in either sphere and over all the 
world. "Porro subesse Romano Pontifici omni humanae 
creaturae declaramus, dicimus, diffinimus et pronunci- 
amus omnino esse de necessitate salutis," Pope Boniface 
had, nearly fifty years earlier, declared. That Bartolus 
had no desire to handle the question of superiority is 
very certain. He was significantly silent about the great 
struggle between John XXII and Lewis of Bavaria, of 
which he was a contemporary : and one cannot help 
feeling that that silence is intentional 1 . The greater 

1 No one could be more shy of speaking out than Bartolus on this 
whole topic of the relations of the Papacy and Empire. We may 
however note two interesting passages in which, not the Pope, but the 
Roman Court, comes in for blame. The first relates to simony. 
Vide Comment, on Dig. Nov. Part n. (D. xlviii. 14. 1), p. 517: "Nota 
ex hac lege quod in curia Romana cessat lex Julia ambitus, quia haec 
omnia pertinent ad Papam, et hoc quo ad ipsum Papam. Sed utinam 
hoc observaretur quo ad ipsos qui sunt adhaerentes Papae. Et ideo 
sciatis quod decretistae fecerunt multas constitutiones, tamen in 
tractatu de simonia, quae est idem quod ambitus, nullam novam 



II] THE EMPIRE AND THE PAPACY 87 

part of his theories on the relations of the Empire 
and Papacy were based on questions connected with 
Henry VII. His struggles were long over; he had 
been on the eve of a breach with the Papacy, but his 
death had averted it ; his grandson, Charles IV, was the 
approved and obedient ally of the Avignon Popes and 
their candidate against the excommunicated Lewis. 

We have quoted above, when considering the de 
jure lordship of the world, which Bartolus ascribes to 
the Emperor, from a passage in his Commentary on the 
Constitution Ad Reprimendum of Henry VII. After 
giving various explanations of the fact that the de jure 
and the de facto lordship of the Emperor do not 
correspond, he finally offers another, as the opinion of 
" Holy Mother Church." We shall quote the passage 
in full: — "Tertio, inhaerendi opinioni S. matris Ecclesiae, 
primo fuit Imperium Babylonis. Secundo fuit Im- 
perium Persarum et Medorum. Tertio fuit Imperium 
Graecorum. Quarto fuit Imperium Romanorum. Ultimo 
adveniente Christo istud Romanorum Imperium incepit 
esse Christi Imperium, et ideo apud Christi vicarium 
est uterque gladius, scilicet spiritualis et temporalis. 
Christus enim est lapis abscissus sine manibus, cujus 
regnum non dissipabitur, de quo prophetavit Daniel 
(cap. II.), ubi haec omnia Imperia describuntur ex- 
presse. Die ergo quod ante Christum Imperium 

constitutionem fecerunt. Eatio : quia simonia non punitur, ut debet. ' ' 
The other relates to delays in the hearing of cases — Comment, on Big. 
Nov. Part n. (D. xlv. 1. 72), p. 78, §31 : "Licet enim tempus instantiae 
sit certum quia durat triennio, tamen tempus litigii est omnino incertum. 
Potest enim esse quod durabit anno, aliquando biennio et aliquando 
perpetuo, ut in curia Eomana, et ideo quia expectare finem judicii 
esset expectare regem Sassonum." Is "to expect the king of 
Saxony" an Italian proverb? 



88 THE EMPIRE AND THE PAPACY [CH. 

Romanorum dependebat ab eo solo (i.e. the Emperor), 
et Imperator recte dicebat quod dominus mundi esset, 
et quod omnia sua sunt. Post Christum vero Imperium 
est apud Christum et ejus vicarium, et transfertur per 
Papam in principem saecularem. Unde si dicimus 
omnia sunt Imperii Romani, quia nunc est Christi, 
verum est si referamus ad personam Christi. Si vero 
referamus ad personam Imperatoris secularis, non pro- 
prie dicitur quod omnia sunt sua vel sub sua jurisdictione, 
quia non sunt terrae Ecclesiae. Illas enim sibi reservit 
Papa, in quo principaliter est Imperium. In hac ergo 
constitutione si se retulit ad Imperium (i.e. the Emperor), 
vel si se retulit ad personam suam, locutus est caute. 
Non enim dicit quod totius orbis jurisdictio sit sua, 
sed quod totius orbis regularitas in eo requiescat. Nam 
et terras Ecclesiae ipse habet certo modo regulare, 
scilicet defendendo eas et servando in devotione 
Ecclesiae, ut juravit (in c. I. extra, de re jud. in 
Clementinis). Et hoc pro nunc transitorie dico, quoniam 
opus per se requireret quae dico. Quare sic credo tenere 
Ecclesiam, sic credo Imperatorem sentire ; et si male 
hoc vel aliud intelligerem, sum paratus me corrigere." 

We shall see in a later part of this essay that 
Bartolus has almost unquestionably drawn this theory, 
which he gives " adhaerendo opinioni S. matris Ec- 
clesiae," from the continuation of the unfinished treatise 
by Aquinas, the De Regimine Principum. Here let us 
merely note the points in which this theory contradicts 
former theories, which we have seen Bartolus give on 
his own authority, not as the opinion of the Church. 
In discussing who compose the Populus Romanus, 
we saw the territory of the Church considered as a 



II] THE EMPIRE AND THE PAPACY 89 

portion of the Empire granted by the Emperor to the 
Pope and clergy, who do not thereby cease to be " cives 
Romani." We shall see the same view as to the origin 
of the territory of the Church, when we come to the 
opinion of Bartolus on the Donation of Constantine. 
Here, on the contrary, the " territorium Ecclesiae " is 
a portion of the whole Empire, which has now become 
the "Imperium Christi," reserved by the Pope, as 
Christ's vicar ; the rest of it he transfers to the secular 
prince. Then, whereas above he has maintained that 
to deny the universal lordship of the Emperor is 
perhaps heresy, as against the teaching of the Church 
and the example of Christ, who Himself recognised 
the Emperor as "dominus," here Bartolus says ex- 
pressly that it is only true to say that "omnia sunt 
Imperii Romani," if we refer " ad personam Christi," in 
whom, and in His vicar the Pope, " principaliter est 
Imperium." And thirdly it is noticeable how in this 
passage Bartolus explains this constitution of Henry VII 
by maintaining that the Emperor does not say " quod 
totius orbis jurisdictio sit sua, sed quod totius orbis 
regularitas in eo requiescat." The words of the constitu- 
tion itself, upon which Bartolus bases this interpretation, 
are — " Ad reprimendum multorum facinora, qui, ruptis 
totius debitae fidelitatis habenis, adversus Romanum 
Imperium, in cujus tranquillitate totius orbis regularitas 
requiescit...." Bartolus' interpretation is quite unsatis- 
factory. These words of the constitution contain nothing 
about jurisdiction, and certainly no surrender of it ; the 
thought is, as a matter of fact, identical with Dante's — 
the necessity of the Roman Empire for the consummation 
and maintenance of peace, which can only be secured 



90 THE EMPIRE AND THE PAPACY [CH. 

while the Roman Empire is intact. Besides we have 
seen Bartolus himself explain the universal dominion 
of the Emperor as meaning universal jurisdiction, and 
in one place 1 we have seen him actually deny the 
necessity of explaining this universal dominion as a 
" regularitas," not indeed because, in that place, he 
maintained it to be jurisdiction, but rather a universal, 
not particular, ownership. 

Let us now turn to another passage, in the Commen- 
tary on the Digest, immediately following a discussion 
on the question of " citatio extra territorium," which we 
have already noticed. It was decided that neither the 
Pope nor Emperor, whose territories and jurisdictions 
are distinct, can cite in the territory of the other — 
"tunc unus non potest citare in territorio alterius. 
Sed debet requirere ilium judicem, in cujus territorio 
est, ut ilium citet, ut hie dicitur." He continues in 
a passage which is doubly interesting from its mention 
of Dante — " Et hoc prout tenemus illam opinionem, 
quam tenuit Dantes, prout illam comperi in uno libro 
quern fecit, qui vocatur Monarchia : in quo libro dis- 
putavit tres questiones. Quarum una fuit, an Imperium 
dependeat ab Ecclesia ? Et tenuit quod non : sed post 
mortem suam quasi propter hoc fuit damnatus ab 
haeresi. Nam Ecclesia tenet quod Imperium dependeat 
ab Ecclesia pulcherrimis rationibus quas omitto. Ten- 
endo istucl quod Imperium dependet ab Ecclesia : 
respondeo alio modo, et dico, quod unus judex potest 
citare in territorio alterius judicis, cui non subest.... 
Sed in territorio illius judicis majoris a quo habet 

1 In this very commentary on the constitution of Henry VII, 
vide above, p. 24. 



Il] THE EMPIRE AND THE PAPACY 91 

jurisdictionem, propter ejus reverentiam non potest 
citare....Non habetis hie alia 1 ." Here the argument 
is very unsatisfactory. Bartolus has laid down the 
rule (repeated by him elsewhere) that a judge can cite 
in a territory outside his jurisdiction, if the territory 
be not distinct, — i.e. if both his territory and the 
territory from which he cites are under one superior. If 
the territories are distinct, i.e. under different superiors, 
citation cannot take place. " And this," he continues, 
"so far as we hold Dante's opinion." Of course he does 
not mean Dante's opinion of the question of citation, 
for that problem does not enter the Monarchia. He 
can only mean — this is true if we hold Dante's opinion 
that the Emperor is independent of the Pope, though 
Dante's view of the independence of the Emperor was 
quite a different thing from the distinct jurisdictions 
and territories of Bartolus. To Dante the Emperor was 
supreme over all the world in temporal matters, the 
Pope in spiritual ; he limited the power of neither 
territorially, and would certainly not have accepted 
Bartolus' opinion that the universal temporal juris- 
diction of the Emperor was invalid in the " lands of the 
Church." But for these views, Bartolus says, Dante 
was almost condemned as a heretic, for the Church 
holds that the Emperor is subject to herself — "pulcher- 
rimis rationibus quas omitto." And so, accepting the 
Church's opinion, Bartolus gives quite a new answer to 

1 One might be inclined to translate this "Non habetis hie alia" 
by a Johnsonian "There's an end on't." But as a matter of fact it 
is a very usual way with Bartolus of ending any discussion, as a 
glance at his Commentaries will show. There are variants sometimes, 
such as "Hie est finis," "Hie non sunt alia" ; but this form is most 
usual. 



92 THE EMPIRE AND THE PAPACY [CH. 

the question of citation — " alio modo." A judge can 
cite in the territory of another judge, to whom he is 
not subject ; but in the territory of his superior judge, 
from whom he has his jurisdiction, he cannot cite 
"propter ejus reverentiam 1 ." That is to say, the 
Emperor is here considered, with regard to the Pope, 
as an inferior "judex." He is put in the same position 
as those inferior "judices," who, in the solution of this 
question given originally 2 , were allowed to cite " extra 
territorium," because, though both territories were dis- 
tinct, they were still both under the Emperor, from 
whom, as superior, both the "judices" of these territories 
held their jurisdiction. But now, though an inferior 
"judex," he cannot cite extra territorium — "propter ejus 
(the Pope's) reverentiam." True, this is given as the 
opinion of the Church — " tenendo istud quod Imperium 
dependet ab Ecclesia " ; but it is given as accepted by 
Bartolus, not merely as a dialectical objection brought 
forward to be refuted. 

1 As regards these words "propter ejus reverentiam" Bartolus 
refers to what he has said in his Comment, on the Dig. Nov. Part i. 
(D. xxxix. 2. 4, § Si tarn vicinum), p. 78, §§ 3-4: but the actual 
question of the Pope's superiority is not discussed there. He con- 
siders "an superveniente majore judice, minor debeat silere." He 
decides that, in the case of a judex, who has " jurisdictionem delega- 
tam generaliter in aliquo casu," on the appearance of the major judex, 
"interim cessat ejus jurisdictio " ; that in the case of a judex who 
has "jurisdictionem ordinariam," the "minor," as regards certain 
insignia and the like, "defert majori et non utitur eo praesenti" ; but 
"circa ea quae pertinent ad exercitium jurisdictionis, non debet 
cessare." All this is very little, if at all, to the point. The Emperor, 
even if the Pope is his superior, cannot have "jurisdictio delegata" ; 
he is the Princeps of the Law Books himself, from whom all jurisdic- 
tion flows. And even if his jurisdiction were "delegata," "defert 
majori" only as regards insignia and the like, not, Bartolus says 
definitely, as regards jurisdiction. 2 Vide above p. 77. 



II] THE EMPIKE AND THE PAPACY 93 

We have this substantially repeated elsewhere 1 . 
Bartolus refers once more to Cino's opinion that the 
decretal Pastoralis Cura " fait compositum per errorem 
canonistarum." But, he says, since it was drawn up in 
a general council, "ubi est copia magna intelligentium 2 ," 
it is not very likely to be an error — "unde est teme- 
raria dicta solutio." He then gives another solution 
of the question of "citatio extra territorium," that of 
another lawyer, Paulus de Leazaria, according to whom 
a distinction must be made, whether the judge is judge 
over the cited party " ratione domicilii," or " ratione 
delicti vel contractus, et sic per accidens." In the first 
case the judge can cite "extra territorium," since the 
cited party has no other superior, through whom he 
can be cited ; in the second case not. Bartolus agrees 
to the first distinction, but not to the second, urging the 
Canon Law and this constitution " Ad Reprimendum " 
itself against it. For, he says, it is quite clear that in 
this constitution the Emperor asserts that his citation 
of king Robert " existentem extra territorium " was 
legitimate, " et loquitur hie de citatione facta a quocun- 
que qui praeest jurisdictioni." He continues : " Et si 
dices, hoc Imperator non potuit, concedo in terris 
Ecclesiae. Die ergo quod Papa potest citare quemlibet 
ubicumque existentem, quia ipse est vicarius Ipsius, 
cujus est terra et plenitudo orbis ejus....Ita per uni- 
versum Imperium officialis, qui praeest uni provinciae, 
potest citare homines existentes in qualibet provincia 

1 Comment, on Const, ad Reprimendum (ad verb. Per Edictum), 
p. 280, §§ 9-11. 

2 Bartolus considered Clement V himself "valde bonus jurista." 
Vide Comment, on Dig. Nov. Part i. (D. xxxix. 2. 13, § Si alieno), 
p. 86, § 11. 



94 THE EMPIRE AND THE PAPACY [CH. 

Imperii, quia hoc facit authoritate Imperatoris....Sed 
Imperator vel alius princeps saecularis non potest citare 
quern in terris Ecclesiae, quia etiam illas terras sibi 
libere reservavit (i.e. the Pope).... Debet ergo scribere 
superiori illius loci ubi persona citata moratur." Now 
here Bartolus goes a step further in the destruction of 
his originally distinct jurisdictions and territories. The 
universal temporal jurisdiction of the Emperor is already 
limited to the territory of the Empire, while the uni- 
versal spiritual jurisdiction of the Pope extends beyond 
the territory of the Church. Now the temporal juris- 
diction of the Pope, which so far has been limited to 
the territory of the Church, is also made universal — 
the Pope can cite " quemlibet ubicunque existentem." 
This is, in effect, an avowal of the complete inferiority 
of the Emperor, temporally and spiritually, to the Pope. 
The Pope has reserved to himself the territory of the 
Church, and therefore transferred the rest of the world, 
which he rules as God's vicar, to the Emperor, in such 
a way, however, that he is still so far superior of all the 
world, as to be able to cite anywhere — even in the 
territory of the Empire, where the officials act " authori- 
tate Imperatoris." 

But before we sum up all these contradictory opinions 
on the relations of the Papacy with the Empire, we 
must consider one more question, that of the validity 
-■ of the pretended Donation of Constantine. Until the 
Renaissance men were concerned, not with the question 
of its historical truth, but of its legal validity. Its legal 
validity, upheld by the Church, was attacked by Im- 
perialists like Dante and Occam, by many of the French 
publicists and by many, if not most, of the civil lawyers. 



II] THE EMPIRE AND THE PAPACY 95 

Bartolus sets out the arguments for and against 
its validity 1 . The Emperor could not prejudice his 
successors — that is the gist of the argument against. 
On the other hand " ex quadam benignitate et speciali- 
tate valet." The Emperor was lord of what he gave 
" ratione jurisdictions "; therefore "saltern jus illud, 
quod ipse habuit, donavit, quod facere potuit." A 
brother not only may, he is bound "dotare sororem." 
Therefore not only may the Emperor, he is bound to 
dower the Church. Finally what is "in signum re- 
munerationis non dicitur donatio." If this is so, it 
follows that Constantine, who was healed by the Pope 
from his leprosy, offered the Church rather a remunera- 
tion than a donation ; and a remuneration is a debt in 
so far that what otherwise is forbidden by law to be 
alienated may be alienated for that purpose. 

Such are the main arguments, supported by authori- 
tative texts from the Law Books. But these are not 
given as the " solutio," that is to say Bartolus' own 
opinion. So far he has only been giving, in the dialectical 
manner, the arguments on either side. But now — 
"Quid dicendum ?...Videte nos sumus in terris amicis 
Ecclesiae, et ideo dico quod ista donatio valeat. Sed 
si quis vellet tenere opinionem quod non valuerit, posset 
respondere ad contraria, et probare opinionem suam per 
casum legis 'Digna vox.' Et dico quod est verum, quod 
potest (i.e. the Emperor) donare ob meritum in rebus 
particularisms. Item dotare Ecclesiam tamquam sororem. 
Sed ilia donatio fuit respectu jurisdictionis, ut haberet 
temporaliter et spiritualiter jurisdictionem (i.e. the 

1 Comment, on Dig. Vet. Prima Constitutio (supr. rubric), p. 4, 
§§ 13-15. 



96 THE EMPIRE AND THE PAPACY [CH. 

Pope). Sed lex alibi elicit, quod Imperium illud, si 
millies Imperator vellet a se abdicare, non posset, nisi 
superiori dare (ut lex Legatus infra, De officio praesidis 1 ). 
Modo si hoc est verum, donatio ilia non valuit. Ad 
contraria est responsum, ut dixi. Ex quo sequitur quod 
Papa non habet jurisdictionem aliquam. Sed volens 
favere Ecclesiae, dico quod ilia donatio valuit. Et ad 
legem Legatus respondeo, quod Imperator et Ecclesia 
processerunt a Deo tamquam a causa efficiente...Ergo 
donando Ecclesiae abdicat a se et dat in manibus 
superioris, sicut est ipse Deus. Sed Papa est vicarius 
Ejus, et sic quasi ipsi Deo donare videtur." 

In the Commentary on the Authenticum the Dona- 
tion is again discussed 2 . Much the same arguments 
are adduced, but certain new points make it well worth 
quoting. " Nota quod Imperium et Sacerdotium pro- 
cesserunt a Deo et eodem tempore, et sic dicit Glossa 
quod istae jurisdictiones sunt distinctae, nee Papa in 
temporalibus, nee Imperator in spiritualibus debet se 
intromittere. . . . Est autem Imperator divinitus consecutus 
Imperium privilegio et potestate. . . . Circa quod vide ut 

1 D. i. 18. 20. In his Commentary on this law (Dig. Vet. Part i.), 
p. 141, Bartolus says: "Nota istam legem optimam. Et hie est casus 
secundum Jac. Buttrigarium, quod donatio facta a Constantino nihil 
valuit, quia a se ipso non potuit abdicare nisi in manibus populi 
Bomani...Dixi in proemio contrarium...Vide Innocentium...et multa 
pulchra circa istam legem vide." The law itself in the Digest runs: 
"Legatus Caesaris, id est praeses vel corrector provinciae, abdicando 
se, non amittit imperium." In his Commentary on the Dig. Nov. 
Part i. (D. xli. 2. 17, § Differentia), p. 270, § 8, Bartolus says: 
" Aliquis non potest renunciare nisi manibus superioris, ut ab eo 
abdicet jurisdictio," and refers to this law "Legatus " and to Innocent, 
but does not mention the Donation. 

2 Comment, on Authenticum (Collatio i. Quomodo oporteat Episcop. 
§ Maxima quidem), p. 25, §§ 1-4. 



II] THE EMPIKE AND THE PAPACY 97 

ibi no tat Innocentius...ubi videtur tenere, quod juris- 
dictio Papae et Imperatoris sunt distinctae nisi vacante 
Imperio: quo casu unica tamen est et inseparata,...Et 
sic videtur quod Papa utramque gladii habeat potes- 
tatem, et ab Ecclesia Imperium dependeat, ut habetur 
in extravaganti Bonifacii quae incipit ' Unam Sanctam/ 
...Tenet glossa ista quod donatio facta a Constantino 
Papae Sylvestro non valet, et ita determinat Jac. 
Buttrigarius....Sed contrarium videtur quod donatio 
valuerit et tenuerit, et quod per successorem non possit 
revocari tenet glossa.... Et idem quod ibi tenet Gul. de 
Cunio..mcet illam (i.e. glossam) non allegat (i.e. Gul. 
de^Cunio), sed probat per multas rationes, et inter 
alia dicit quod haec non fait proprie donatio, sed 
quaedam remuneratio, attento quod Imperator erat 
leprosus sanatus per Papain Sylvestrum. Valebat ergo 
donatio tamquam remuneratio.... Primum, Imperium et 
Sacerdotium sunt a Deo, ut hie ; ergo sunt ut frater et 

soror Ergo Imperator dans Ecclesiae, non videtur 

donare sed dotare ; sed frater tenetur dotare sororem. . . . 
Istam opinionem quod donatio teneat et non possit per 
Imperatorem revocari tenet glossa... et istud teneamus 
favore Ecclesiae. Sed quaero, retenta opinione quod 
donatio non valuerit, an Ecclesia praescripserit res ab 
Imperatore donatas. Jac. de Belvisio videtur hie tenere 
quod non per multas rationes, et idem videtur tenere 
Cynus. Sed contra tenet dominus Paulus...et die ut 
ibi per eum." 

To begin with, we must point out again the complete 
contradiction between these views and the view of the 
Empire as the " Imperium Christi." Here the territory 
of the Church is a piece cut out of the Empire and 

w. 7 



98 THE EMPIRE AND THE PAPACY [CH. 

granted to the Church ; in the other view the Empire 
is a piece cut out of the "Imperium Christi," the 
territory of the Church being the rest of it, which is 
reserved to Christ's vicar, the Pope. Bartolus does 
not attempt to reconcile the two. 

Secondly it is quite clear that Bartolus does not 
really believe in the validity of the Donation. Nearly 
all the arguments given in favour of it are given, not 
as his own, but as those of Innocent or Gulielmus de 
Cunio or the Gloss to the Canon Law. He confesses that 
its invalidity can be maintained. For himself he wishes 
to favour the Church, since he is "in terris Ecclesiae 
amicis 1 ." Therefore he says that the Donation is valid. 
The only thing admirable in such a discussion is the 
honest avowal of so dishonest a method of arriving at 
a conclusion. Bartolus is so obviously not saying what 
he means, that to dissect his views on this topic further 
would be useless ; but it is very significant that, having 
decided for the validity of the Donation, Bartolus brings 
in prescription, to make sure that the territory of the 
Church is held on some valid title. " Plane ludit 2 ." 

1 Cf. above, p. 77, "tamquam existens in terris Ecclesiae." 

2 So said a sixteenth century writer, whom Dr Figgis mentions — 
"I think Francois Hotman" (Bartolus and European Political Ideas, 
p. 157, note 1). On one occasion only does Bartolus seem to speak of 
the Papal supremacy with anything at all like conviction — the passage 
is in one of the additional Consilia, first printed, so far as I know, in 
the Venice ed. of 1596. Vide Cons. vn. p. 185 verso — "Unde ego 
Bartolus de Saxoferrato consulo ut supra scriptum est, salvo tamen 
semper judicio Summi Pontificis et Sanctae Matris Ecclesiae Bomanae, 
et sic Sedis Apostolicae omnium fidelium Magistrae et Dominae, 
quibus in omnibus me subdo, tamquam fidelis...etiam Imperatorem 
ipsum hortando et rogando ut antequam aliquid in praemissis declaret, 
consulat Beatissimum Papam." Cf. § 4: "...ad quern (i.e. the Pope) 
Imperatores et Beges et omnes Principes et Populi totius orbis debent 



II] THE EMPIRE AND THE PAPACY 99 

To sum up — the Papacy and the Empire are 
considered from two distinct points of view. In the 
first place they are the universal governing powers, the 
spiritual and temporal respectively, of the world — at 
least of that Populus Romanus, which, as we have seen, 
actually consists of all those who obey the Church. 
Both are of divine origin and of contemporary date; they 
are, as it were, sister and brother. But this conception 
is modified by a territorial conception of their relations. 
There is a territory of the Empire and a territory of the 
Church, and the two are distinct, with separate and 
distinct jurisdictions and administrations. And thus, 
combining the two, we arrive at this conclusion — the 
Emperor is temporal lord of the territory of the Empire, 
the Pope is temporal lord of the territory of the Church, 
but the Pope is also spiritual lord, as God's vicar, of 
both the territories of Empire and Church alike. And 
in the same way the Civil Law is the law of the terri- 
tory of the Empire, the Canons are the law of the 
territory of the Church, but the Canons are also the 
universal law of both territories, as far as regards 
spiritual matters. 

As to the origin of these separate territories we 
have two irreconcilable statements. According to one, 
the territory of the Church is cut out of the universal 
Empire by the Donation of Constantine ; according to 
the other, the territory of the Empire is transferred to 
the Emperor by the Pope, as Christ's vicar ; since from 

ascendere pro interpretations et decisione omnium dubiorum, cum 
Dominus noster Jesus Christus...dixerit Petro, Tu es Petrus" etc. 
But it should be noted that the question at issue concerns a spiritual 
matter, blasphemy. 



100 THE EMPIRE AND THE PAPACY [CH. 

Christ's coming the Empire has been His. Christ's 
vicar transfers it to the Emperor, but reserves to him- 
self a part, which is the territory of the Church. The 
first view implies the validity of the Donation of Con- 
stantine. Which of these, or whether either of these, 
is really Bartolus' own opinion, need not be asked. His 
whole statement — and it occupies no inconsiderable 
space in his political thought — of the Papal supremacy 
does, one may feel confident, not express his own view, 
but the view which he wants to give on opportunist 
grounds — "wishing to favour the Church," or because he 
is in a place that is " friendly to the Church." In its 
result it endorses to the full the extremest view of 
Papalism. His own thought ends with the division of 
the Empire and Papacy into distinct and separate juris- 
dictions, administrations and territories, qualified by the 
universal spiritual jurisdiction of the Pope. That is 
his own doctrine ; what he adds is "adhaerendo opinioni 
S. matris Ecclesiae." 

The high place, which we hope to show Bartolus 
occupying in the history of political thought, is clearly 
not dependent on his theories of the relations of the 
Empire and Papacy. But before we pass on to con- 
sider topics, which show Bartolus in his true light as 
a political thinker, we ought to cast a glance back at 
our previous inquiries in this section. The theories of 
Bartolus on this topic may not be valuable in themselves, 
but they have a distinct value as illustrating the course 
of medieval thought. We may leave on one side all 
that Bartolus has said " favore Ecclesiae," and consider 
merely the conception of the Empire and Papacy as 
distinct and separate jurisdictions or powers. 



II] THE EMPIRE AND THE PAPACY 101 

Bartolus, we note, evidently uses "Papa," "Ecclesia" 
and " Sacerdotium " as convertible terms — nor, in this, 
is he by any means unique. Dr Figgis 1 has recently 
reminded us that "in common parlance the Church 
in the Middle Ages meant not the 'congregatio fide- 
lium ' — though, of course, no one would have denied 
that to be the right meaning — not the whole body of 
baptised Christians as distinct from those who were 
not, but rather the active, governing section of the 
Church." We cannot have a better conclusion to our 
inquiries than by attempting some criticism of this very 
illuminating paper. 

Dr Figgis in this paper considers the distinction of 
Church and State as two societies, and maintains that 
this distinction " is either very primitive, dating from 
the days of persecution, or else very modern, dating 
from the religious divisions of Europe." This thesis in 
itself we are far from attempting to dispute. Where 
we venture to disagree with Dr Figgis is when he 
comes to trace the growth of this conception of Church 
and State as two societies : he traces it back through 
the Reformation to the growth of national States, the 
decay of feudalism and the Holy Roman Empire, and 
the "analysis of political forms, begun by S. Thomas 
on the Aristotelian basis, [which] set on foot the habit 
of reasoning about political societies." What we would 
suggest is that we must go further back than this, to 
the entry of Roman Law into medieval political thought 
in the twelfth century. 

"The Code of Justinian," says Dr Figgis, "was 

1 "Respublica Christiana" (in Transactions of Royal Historical 
Society, 1911), pp. 63-88. 



102 THE EMPIRE AND THE PAPACY [CH. 

compiled subsequently to the De Civitate Dei of S. Augus- 
tine. The whole spirit of both is to identify Church 
and State. The Pagan State was also a Church, and 
the medieval Church was also a State; the Church and 
the State in theory." This is perfectly true, but it 
surely passes over a point of difference, which cannot be 
unimportant, that whereas in Justinian the State absorbs 
the Church, in S. Augustine the Church absorbs the 
State. Now up till the twelfth century medieval 
political thought was dominated by S. Augustine, not 
Justinian, and consequently the one society of which 
men conceived was a Church, not a State. Men 
might talk of " Respublica et Ecclesia," but there was 
no antithesis. There was a single Christian society — the 
Populus Christianus — and as often as not, in discussing 
the relations of the two governmental powers in that 
society, i.e. the Imperium or Regnum and the Sacerdo- 
tium, men named the single Christian society "Ecclesia" 
rather than " Respublica." Then came the Investiture 
struggle and the revival of Roman Law. We saw that 
for a moment it seemed as if the secular State was to 
return to western Europe as the sinful Civitas Terrena. 
But only for a moment. The Papalists in the main 
clung to the conception of the single Christian society. 
The secular State returned to western Europe as the 
lawyers' Imperium Romanum. Now of course it is 
■ undoubtedly true that this was a Christian Empire and 
might be conterminous with Christendom: but the 
point of importance was that, whereas up till now men 
thought of Christendom primarily as a Church, after 
the revival of Roman Law they began to think of the 
single society primarily as a State. Bartolus might find 



II] THE EMPIRE AND THE PAPACY 103 

that the Populus Romanus was practically identical 
with western Christendom, but the fact remains that 
western Europe was thought of as the Populus Romanus 
rather than as the Populus Christianus. 

It may be said that we are here insisting on an 
unimportant distinction; that whether the single society 
was a State-Church or a Church-State is of little impor- 
tance compared with the fact that, in any case, it tvas a 
single society and — be it State or Church — a Christian 
society. But the point which we wish to make is that, 
while the medieval lawyer, and those influenced by the 
lawyer's theories after the Bolognese revival, thought of 
the Christian society primarily as the Imperium Roma- 
num or Populus Romanus, and therefore primarily as 
a universal State, the conception broke down when 
they came to consider the relations of this State to the 
Papacy or clergy. They did not — and could not, in 
view of the course of history and thought in the six 
hundred years and more between them and Justinian — 
accept the absorption of the Church in the State, as 
presented by the Corpus Juris. As a result they were 
driven to insist on the separation and distinction of the 
Ecclesia and Imperium. 

To this it may be said that the separation and dis- 
tinction for which they plead, are not the separation and 
distinction of Church and State, but of the ecclesias- 
tical and secular governments of the one society. "The 
conflicts between the two powers," says Dr Figgis, 
"are habitually spoken of as struggles between the 
Sacerdotium and the Regnum; although the wider 
terms Respublica and Ecclesia are not unknown, it is 
surely reasonable to interpret them by the former." 



104 THE EMPIKE AND THE PAPACY [CH. 

We would venture to express this differently. We 
would say that in the early Middle Ages, that is to say, 
up to the Investiture struggle — and perhaps inclusive 
of it — the conflict is habitually considered as between 
the Sacerdotium and Regnum or Imperium, and, in/ 
nine cases out of ten at least, as taking place in the 
Ecclesia, rather than in the Respublica. Only in the 
later Middle Ages are Respublica and Ecclesia used as 
convertible terms for Regnum or Imperium and Sacer- 
dotium respectively: and the conclusion we would draw 
is that, when this happens, the conception of the single 
society is breaking up. 

So long as men merely place the Imperium or 
Regnum and Sacerdotium in antithesis, there is no 
question, and cannot be, of more than one society; 
but when they begin to use terms like Respublica 
and Ecclesia, which do not properly correspond to the 
other terms, it means that there is confusion — un- 
conscious of course — in men's minds, which indicates an 
age of transition from one conception to the other. 

To this we maintain Bartolus is witness. No doubt 
his territorial conception of the Empire and Papacy is 
not to be insisted on too much, and is to be referred in 
great part to the influence of local Italian conditions. 
But no man could have entertained that conception as 
Bartolus did — for it enters into almost all his thought 
on the relations of the Empire and Papacy — if he had 
had a really clear conception of both as but two "powers" 
in one society. And similarly no man could have used 
"Papa," "Ecclesia," and "Sacerdotium" in the way in 
which Bartolus used them, if the conception of Ecclesia, 
with the Pope at its head and representing it, over 



II] THE EMPIRE AND THE PAPACY 105 

against the Imperium, with the Emperor at its head, 
had not, as yet unconsciously indeed, been making 
itself felt. 

We have attempted to controvert one or two pas- 
sages in Dr Figgis' paper, not, be it repeated, the 
paper itself. The Middle Ages, as Dr Figgis main- 
tains, did not arrive at the conception of Church and 
State as two societies. "Before the modern world of 
politics could arise," he has said elsewhere, "it was 
needful not merely to deprive the Emperor of any 
shadowy claim to supremacy, but the Pope must be 
driven from his international position 1 ." But what we 
wish to show in this essay is that modern politics did not 
begin with the return of Aristotle to western Europe 
in the thirteenth century, but with the Bolognese 
revival of Roman Law at the end of the eleventh. Our 
modern State did not spring ready-made from the 
Renaissance, nor our modern conception of Church and 
State from the Reformation. Both were evolved by 
a long process in the Middle Ages, or rather processes. 
For the modern State is not merely the 7roA,t?, it is also 
"sibi Princeps 2 ," while Dr Figgis himself shows how 
late died the conception of the single society, the Res- 
publica Christiana. The sum of our disagreement with 
Dr Figgis is thus, mainly, that we would date the 
break-up of the conception of the single society from 
the entry of Roman Law, not of Aristotle, into political 
thought. 

There is one other point which may well be considered 
here. "The word Churchman," says Dr Figgis, "means 

1 From Gerson to Grotius, p. 19. 

2 We shall consider this phrase at length later. 



106 THE EMPIRE AND THE PAPACY [CH. 

to-day one who belongs to the Church as against 
others. In the Middle Ages there were no others, or, 
if there were, they were occupied in being burnt." 
Here again, we would suggest, we have to separate 
the early and the later Middle Ages. We cannot pass 
by the Crusades, which had brought Christian Europe 
once more into touch with non- Christian peoples. The 
political literature of the later Middle Ages shows a 
constantly widening outlook as regards these latter — a 
constantly growing tendency to think that, caeteris 
paribus, non-Churchmen, other than incorrigible heretics, 
ought not to be occupied in being burnt 1 . Bartolus 
himself, for example, we shall later see much concerned 
to prove the justice of "our" wars with the Saracens 
and Turks. It would be immensely interesting to trace 
the slow growth of this sentiment of toleration in the 
later Middle Ages ; it cannot be attempted here. But 
we may consider this. Grotius made possible modern 
international law by his assumption of a universal law 
of nature, and under that law he took the great step of 
including the Turk. Now already in the Middle Ages 
we shall see Engelbert of Admont maintaining that all 
men, as men, are subject to the Jus Gentium, and 
therefore are under the Empire ; and we may compare 
with this how Albericus de Rosate says that the Jews 
are subject to the Empire, but not to the Church 2 . 

1 Among the many interesting discussions in later medieval writers 
on the relations of the Empire and Papacy to the Jews and other 
unbelievers, especially interesting are Oldradus, Quaestio cclxiv. and 
Augustinus Triumphus, Summa de Eccles. Pot., Quaestio xxin. 

2 Comment, on Codex, Part i. (C. I. 4. 3), p. 42, § 1 : "Ergo judaei 
subsunt Romano Imperio et legibus, sed Romanae Ecclesiae non"; 
and cf. a long and interesting passage in Lucas de Penna, Comment, 
on Codex, Tres libri (C. xi. 71. 1), p. 637. 



II] THE EMPIRE AND THE PAPACY 107 

Bartolus indeed, as we have seen, draws a sharp line 
between the Christian Populus Romanus and the 
Populi extranei, who none the less include the Greek 
Christians. But when men could talk as Albericus de 
Rosate, there can be no doubt that the conception of a 
single Christian society was beginning to give way. 



II. THE EMPIRE AND THE REGNA 

" Bartolus," says Dr Figgis 1 , "never worried about 
the ultramontane, barbarian peoples"; and this, if 
somewhat overstated 2 , is true. His eyes and his heart 
were fixed on Italy, and not even on Italy as a whole. 

1 Figgis, Bartolus and European Political Ideas, p. 159. 

2 It is overstated somewhat, because Bartolus is always ready to 
consider a foreign nation, and its customs, by way of illustration. 
Vide a curious example in the Comment, on Dig. Nov. Part n. 
(D. xlix. 16. 3), p. 639 : " Miles non suspenditur, sed decapitatur. Et 
ita servatur in Italia. Sed in Francia servatur contrarium : quia 
quilibet, etiam nobilis, suspenditur: nee habetur ilia mors ita igno- 
miniosa, sicut in Italia." Cf. Comment, on Infort. Part n. (D. xxxviii. 
17. 1), p. 540 : " Dicit Petrus de Bella Pertica quod erat consuetudo in 
Anglia, quod si forensis decederet, succederet Ecclesia major." In 
Comment, on Dig. Vet. Part n. (D. xin. 7. 18, § Si nuda), p. 266, he 
notes : ' ' Begi Franciae f uit datus comitatus Tolosae ita quod ipse est 
rex et comes, non quod comitatus Tolosanensis efficiatur de regno, sed 
comitatus regni, et tunc debet regi secundum leges et consuetudines 
suas." Still that in general Bartolus' eyes are fixed on Italy and its 
problems is incontestable. They only wander beyond the Alps to 
face such a problem as the " translatio Imperii " to the Germans, or 
to fetch illustrations such as these. But the word " barbarian " does 
certainly not, I think, express Bartolus' attitude towards the ultra- 
montane peoples. It is true that the Empire, since the "translatio," 
" semper decrevit in oculis nostris," but " omnes Christiani dicuntur 
fratres nostri," and all, in spite of national differences, are a part of 
the Populus Romanus. 



108 THE EMPIRE AND THE REGNA [CH. 

It was those parts of Italy which he knew and whose 
problems were actually before him — Lombardy, Tuscany, 
the March and central Italy generally — with which he 
was concerned. Kings, after all, were far away, in Sicily, 
Naples or beyond the Alps, while tyrants were near at 
hand; and it was in the city-states, whether still free or 
fallen under a tyrant, that Bartolus saw the problems 
of his day made visible. The surroundings of each 
individual lawyer stamp their character on his works ; 
and the works of Bartolus are those of a man who lived, 
taught and thought among the Italian cities of the 
fourteenth century. 

Now, of course, the problem presented by the Regna 
was in many ways identical with that presented by the 
Civitates. In both cases the problem, put in its lowest 
terms, was to adapt the theory of one, omnipotent 
world-State to a world of States. To acknowledge 
that France or Florence were de facto independent 
was not enough. Even to acknowledge their inde- 
pendence as de jure, left over problems for solution. 
Suppose the king of France de jure independent — 
is he then the Princeps of the Law Books ? The rather 
vague term Princeps could be, and often was, applied to 
others besides the Emperor; but it was none the less only 
after the work of many generations of lawyers, that 
the identification of the Princeps with any indepen- 
dent sovereign power could be made in so many 
words. The independence of the king of France, even 
when accepted both de facto and de jure 1 , was not 

1 Bodin, we shall see in a later part of this essay, said that 
Oldradus was the "first of his age" to declare the king of France 
de jure independent. Many of the lawyers rest this independence on 



II] THE EMPIRE AND THE REGNA 109 

completely fitted into the lawyer's theories, until in the 
middle of the fourteenth century they could say that 
the "rex in regno suo est Imperator regni sui." With 
the history of this phrase we shall be much concerned 
in a later part of this essay. Here we have only to 
note that we shall look for it in vain in Bartolus. But 
we shall find this solution, and all it means, applied by 
Bartolus time after time to the Civitas. The Civitas 
which Bartolus calls " sibi princeps " is in precisely the 
same position as the Rex, who is "Imperator regni 
sui"; and the reason that Bartolus did not apply this 
solution to the Rex is simply that the problems, which 
made this solution necessary, rarely presented themselves 
to him except in connection with the Civitas. 

It is with the Civitas, therefore, that we shall be 
concerned for the remainder of our study of Bartolus' 

special exemption, as we saw Bartolus do, when discussing the extent 
of the Populus Romanus. Cf. Lucas de Penna, Comment, on Codex, 
Tres libri (C. xi. 51. 1), p. 525: " Imperium est potestas, jussio, 
perpetuum regnum. Huic autem Imperio, scilicet Romano, omnes 
gentes subesse deberent....Sed sunt aliqui reges liberi, ab Imperio 
exempti, qui vel jugum nunquam susceperunt, vel susceptum re- 
jecerunt...eos enim vocat Imperator socios et amieos....Potissime 
liber et exemptus est rex Francorum, qui superiorem in temporalibus 
non recognoscit....Item rex Siciliae." (Lucas de Penna is a Nea- 
politan.) Cf. Nicholas Spinellus (also a Neapolitan) whose Lecturae 
on Dig. Book xxvu. are printed in most editions of Bartolus' Comment, 
on the Infortiatum. Vide Comment, on Infort. Part i. (D. xxvu. 1. 6, 
§ Grammatici), p. 209, § 2 : " Nota Principem Romanumesse dominum 
totius orbis....Nec obstat C. de Summa Trin. L. Cunctos, ubi videtur 
dicere quod sunt alii non subjecti...quia ibi loquitur de facto. Nam 
de facto aliquae provinciae non sunt subjectae, sed de jure omnes 
sibi subjectae sunt. Et ita dicit Petrus (de Bella Pertica) in d. L. 
Cunctos.... Quod credo verum nisi per aliquod tempus sit secuta prae- 
scriptio....Praeterea hoc non videtur verum, cum enim Francia ab 
ejus dominio sit subtracta et rex Franciae sit exemptus.... Credo enim 
regem Franciae non subjectum esse Imperio." 



110 THE EMPIRE AND THE REGNA [CH. 

own thought. We have to show the various steps by 
which we arrive at this solution ; and we have to con- 
sider the Civitas after it has become " sibi princeps " ; 
we shall attempt in later pages to show what the 
solution means and its place in medieval thought, 
whether applied to the Civitas or Kegnum. Before, 
however, we pass on to the cities, we may glance at 
some of the few passages in which Bartolus treats of 
the kings and their kingdoms. 

The division of the world, according to Bartolus, 
is "de jure gentium," and he distinguishes between 
divisions, such as the Provincia or Regnum, where 
men dwell together, "sed in aedificiis separatis," from 
those, such as the Civitas, Castrum or Villa, where they 
dwell together "in aedificiis in unum collatis 1 ." Else- 
where he talks of the "regia potestas" as "de jure 
gentium 2 ," and he must have a similar thought in 
mind, when he says, as we have seen above, that every 
king holds his office mediately or immediately from 
God, but that the elective "rex universalis" is more 
divine than the hereditary under-kings, who are "magis 
ex constitutione hominum." 

Then we have seen these kings retained in the 
Populus Romanus, their independence being considered 
as grounded on concession from the Emperor, whom 
therefore, Bartolus argues, they must recognise as de 
jure lord of the world. We may infer from this that 
their internal independence is therefore de jure; and 
we have also seen that the universal dominion of 

1 Vide below, p. 124, note 1. 

2 Vide Comment, on Dig. Vet. Part n. (D. xn. 6. 38), p. 175, § 12. 
Cf. Tract. Repraes. Quaestio in. 1, § 2, p. 331. 



Il] THE EMPIRE AND THE REGNA 111 

the Emperor does not mean universal propriety. The 
world, as a " universitas," is his, but "singulae res" are 
not. The kings are de jure "domini praediorum suo- 
rum." Moreover we must remember that, even if the 
kings are only "majores judices," they have, as such, 
wide powers. They can make particular laws for their 
particular kingdoms, just as the Emperor makes uni- 
versal law 1 . They are thus "judices supra legem 2 ." 
And finally as Praesides Provinciarum, they have the 
right to exercise " merum et mixtum imperium " — and 
how much that implies we shall see later. 

Occasionally Bartolus goes further and seems to 
place the Princeps and Rex together 3 . But such 

1 "Majores judices" — senators, praetors, praetorian prefects "qui 
aequiparantur regibus, qui sunt hodie per mundum " — can make 
statutes; but, as such, these laws have only a particular validity 
and do not exclude Imperial laws. " Sicut Princeps, qui est dominus 
totius facit legem universalem, ita isti, qui sunt domini in parte, 
faciunt statuta in parte." Vide Comment, on Dig. Vet. Part i. (D. i. 
1. 9), p. 28, §§ 8-12. 

2 "...Judices supra legem, ut Papa vel Imperator vel alius dominus 
cujus dictum habetur pro lege in territorio suo." Vide Comment, on 
Codex, Part i. (C. n. 10. 1), p. 211. Cf. Comment, on Codex, Part i. 
(C. i. 14. 4), p. 87 : " Aequum et dignum est Principem legibus vivere, 
et quemlibet habentem imperium." 

3 Vide e.g. Comment, on Dig. Nov. Part n. (D. xlix. 2. 1), p. 600, 
§ 3, where, discussing a question of appeal, Bartolus says: " Sed si 
esset aliquis rex vel dominus, qui in temporalibus superiorem non 
recognosceret, tunc putarem in eo idem quod in Principe, quia est 
eadem ratio." Again, Comment, on Authenticum, Collatio n. (Ut 
jud. sine quoquo suffr. § Omnes Dignitates), p. 33. If the " Princeps 
vel rex" extort anything from their subjects, the subjects suffer 
injustice. "Non obstat quod superiorem non habent " (i.e. the 
Princeps or Rex). But vide below, p. 155, a passage which clearly 
shows how little Bartolus is concerned with the Regna. Discussing 
"restitutio famae," as belonging to the Emperor, he says, "Si esset 
rex, princeps vel populus, qui Imperatorem in dominum non recog- 
nosceret, tunc quo ad seipsos, restitutio famae valeret " : but then, 



112 THE EMPIRE AND THE REGNA [CH. 

passages are few and far between. All we can really say 
is that Bartolus does recognise the independence of the 
kingdoms — and presumably as de jure ; that he grounds 
that independence on concession; but that he leaves 
the Emperor above as the "rex universalis 1 ." His 
thought is thus fragmentary upon this topic. The 
problem is there, and the elements of a solution; but 
the solution is not applied, as we shall see it applied in 
the case of the Civitas. 



III. THE EMPIRE AND THE CIVITATES 

For Aquinas, Egidius Romanus and in general all 
those who took Aristotle's Politics, as introduced to the 
later Middle Ages by Aquinas himself, as the basis of 
their political speculation, the State was the Civitas or 

quite forgetting the Rex or Princeps, he continues, " Quia talis appel- 
lator populus liber... et apud eosmet dicitur esse imperium sui ipsius." 
Still more significant is another passage on the same subject (vide 
below, p. 156) : " Quaero, quis possit super infamia dispensare? Re- 
spondeo textus dicit quod solus Princeps vel senatus....Idem dicimus 
de Papa, quia potest cum infamibus dispensare. Idem in collegio 
cardinalium, vacante pastore. Secus in regibus et principibus." 
After which he goes on to allow the right to independent cities 
" superiorem non recognoscentes." Bartolus obviously does not 
intentionally pass over the Rex or Princeps in these two cases; he 
is simply not concerned with them ; and thus, even when he mentions 
them along with the Civitates, disregards their existence when he 
comes to the crucial point. 

1 Vide, e.g. Comment, on Codex, Part i. (C. i. 2. 5), p. 36: "Ad 
quos pertinet imponere collectas de jure communi? Respondeo ad 
reges ' ' ; and he goes on to say also to ' ' duces et barones in suo 
ducatu et civitates non pedisequas, quae merum imperium praescrip- 
serunt." Then cf. Comment, on Dig. Vet. Part i. (D. in. 4. 1, § Quod 
si nemo), p. 367: "Pro utilitate vero publica totius Imperii non 
posset imponere collectam aliquis nisi Princeps." 



Il] THE EMPIRE AND THE C1VITATES 113 

Regnum. The Imperium was clearly out of place in 
political theories derived from Aristotle. That a place 
was found for the Imperium we shall see in the next 
chapter. But the Aristotelians started from the Civitas 
or Regnum, and if they went on to form a hierarchy of 
political communities, beginning with the Civitas and 
culminating in the Imperium, the difference between 
one form of community and another was still only one of 
degree of perfection, for all alike came under the rubric 
of the self-sufficient and complete community 1 . 

The lawyers viewed the Civitas and Regnum 
differently, because they followed a tradition that went 
back nearly two hundred years behind Aquinas. To 
the lawyer the State was as essentially the Imperium, as 
to the Aristotelian it was the Civitas or Regnum. The \ 
Glossators, taking their texts literally, had found no 
place for independent, sovereign kings and cities ; the 
kingdom was a Roman Province, the city a Roman 
Municipium, and both must fall under the common 
heading of the " universitas 2 ." But already under the 
Glossators necessity drove the lawyers to develope their 
political theories. Hard facts made it quite impossible 
to force independent and powerful France into the 
position of a mere Roman Province, or an independent 
(and Guelph) city like Florence into that of a mere 
Roman Municipium. At a real solution of the difficulty, 
such as we shall find in Bartolus himself, the Glossators 
did not arrive; but a great step towards such a solution 
was taken, when the conception of the "universitas" was 



1 We shall consider the Aristotelians in detail in the next chapter. 

2 Vide Gierke, Deutsche Genossenschaftsrecht, voL Hi. p. 199. 

w. 8 



114 THE EMPIRE AND THE CIVITATES [CH. 

enlarged so as to include the Empire itself 1 . In this 
way the difference between the Imperium, Regnum and 
Civitas became, for the lawyer also, one of degree ; but 
at the same time the difference of quality remained. 
The Empire as a world-embracing " universitas " has 
powers and rights, which do not belong to the " larga 
universitas," which is a Province, or the " minus larga 
universitas," which is a Civitas, and the same distinc- 
tion holds good between the Provincia and the 
Civitas themselves 2 . Thus while the Civitas was to 
the Aristotelian the State, to the lawyer it was, strictly, 
merely a " universitas," — and, we may say, the lowest in 
the scale of communities, which could be said normally 
to have in itself the elements of an independent political 
life. As a "universitas," the existence of the Civitas 
as a community, with a limited jurisdiction over its 
members, was secured. It was brought under the rubric 
of those corporations recognised as licit in general ; there 
is thus, Bartolus says, nothing to prevent a " people " 
from settling down in a place and forming a Civitas. 
It could do so "de jure gentium," provided only that it 
did not tend "ad injuriam vel emulationem alterius 3 ." 

1 The Glossators did not allow this in so many words, says 
Dr Gierke, though they do not reject such a conception, vide op. 
cit. p. 198: " Allerdings hatten wohl schon die Glossatoren die spater 
gelaufige Anschauungsweise, nach welcher das Eeich selbst nur die 
oberste und umfassendeste ' universitas ' ist, kaum reprobirt. Aus- 
driicklich aber vollziehen sie eine solche Subsumtion noch nicht. 
Vielmehr bleiben sie in der Theorie bei dem in den Quellen vorge- 
fundenen unvermittelten Gegensatz zwischen dem Reich und alien 
iibrigen Verbanden stehen, etc." 

2 Thus we shall find that Merum et Mixtum Imperium belong to 
the "larga universitas" " de jure communi," not to the "minus 
larga." 

3 Vide Comment, on Dig. Vet. Part I. (D. in. 4. 1), p. 365 : " Omne 



II] THE EMPIRE AND THE C1VITATES 115 

Now, however, when we remember the assumption 
running through the thought of Bartolus, that many, 
if not most of the Civitates, are independent, we realise 
at once that the theory is as yet quite inadequate. 
We need not take great cities like Perugia or Florence. 
Take a small city like Todi, where Bartolus began 
his active life as assessor. Unless theory was to be 
entirely out of touch with fact, the officials of Todi 
could not be classed as mere " defensores civitatis " ; 
its independent political life could not be explained 
by its classification as a mere " collegium licitum." In 
other words, the problem was to assure to the Civitas 
rights and privileges which, strictly, were applicable 
only to higher political units — some only to the Civitas 
Romana, some to the officials of Rome and provincial 
governors, some only to the Emperor himself. These 
we may most conveniently consider under four heads : — 
(1) the right to be considered a Respublica ; (2) the 
rights connected with the Fiscus; (3) the right to 
exercise Merum et Mixtum Imperium ; (4) the right 
to make laws. 

collegium est improbatum nisi appareat specialiter approbatum.... 
Quaere- , quae collegia sunt approbata?...Item dicit gl. congregatio 
cujuslibet civitatis, castri vel villae, quod est novum quid. Videtur 
ergo quod si aliqua gens vellet se ponere in uno loco et facere civitatem, 
castrum vel villam, quod hoc potest. Videtur enim hoc permissum 
de jure gentium.... Et crederem hoc esse verum nisi tenderet ad 
injuriam vel emulationem alterius castri vel villae." Cf. Comment, 
on Big. Nov. Part n. (D. l. 16. 2), p. 685, § 7: " Et nos possemus 
intrare in istam quaestionem quando possent ex se homines con- 
stituere civitates, an possint sua authoritate, an requiratur authoritas 
superioris. Et dicit Innocentius quod homines sua sponte possunt 
sine authoritate superioris.... Et ibi dicit ipse, non intelligas de ea quae 
habet episcopum, sed in aliis quae non habent episcopum, quia istud 
est in Italia, quando habent episcopum, est civitas." 

8—2 



116 THE EMPIRE AND THE CIVITATES [CH. 

(1) The Glossators had reserved the term Res- 
publica " properly " only for the city of Rome of their 
day, an assumption so plainly untenable (even though it 
was something more than an academic theory, as is shown 
by the attempts of Arnold of Brescia and Rienzi) that 
they were compelled to agree that at least " improperly " 
the term might be applied to other Civitates as well 1 . 
Bartolus, however, fully developes this grudging ad- 
mission. "Secundum glossam die quod respublica 
proprie sumendo intelligitur de republica Romanorum, 
improprie autem quandoque sumitur pro qualibet alia 
civitate 2 ." He offers, however, another explanation as 
well, namely that Respublica may be applied to a 
Ci vitas " ratione adjuncti," as in the case of this law, 
where the "respublica Heliopolitanorum" is mentioned 3 . 
But this explanation is clearly only applicable to laws 
such as this, where the term Respublica is definitely 
qualified by an " adjunct " other than the name of 
Rome 4 . In general the term Respublica occurs un- 

1 Vide Gierke, Deutsche Genossenschaftsrecht, vol. in. p. 201 : 
' ' Allerdings gestehen die Glossatoren den Namen des offentlichen 
Gemeinwesens den engeren Verbanden im Princip nicht zu. Sie 
behaupten, indem sie an dem betreffenden Quellenausspriichen haften, 
dass ' eigentlich ' nur auf das Reich und die Stadt Rom die Begriffe 
' respublica,' ' jus publicum,' ' bona publica ' anwendbar, alle anderen 
Gemeinheiten ' loco privatorum ' seien." 

2 Comment, on Codex, Part n. (C. vin. 18. 3), p. 291. 

3 The law runs : ' ' Cum rempublicam Heliopolitanorum propter 
emolumentum sententiae in rerum tarn heredis quam hereditariarum 
possessionem missam esse proponas etc." 

4 One may compare a passage in the Commentary on the Codex, 
Tres libri (C. xi. 48. 1), p. 103: " Cives Romani habitantes in urbe 
effugiunt onus capitationis.... Potest etiam intelligi in civibus aliarum 
civitatum habitantibus intra urbem, et hoc patet ex generalitate hujus 
literae, quae dicit, ' in orientalibus quoque ' " — referring to the words 



II] THE EMPIRE AND THE CIVITATES 117 

qualified, and in no such case does Bartolus refuse to 
apply it to any Civitas. " Quaerit glossa cle qua 
republica loquitur haec lex," he says of a law in the 
Code 1 . " Respondeo quod loquitur de republica Ro- 
manorum....Sed tiuic quaerit quid in aliis civitatibus. 
...Finaliter videtur tenere glossa quod aliae civitates 
restituuntur 2 ." We may say, therefore, that the term 
Respublica is applicable to any Civitas. But the older 
tendency to limit the term to the actual city of Rome 
was not yet dead ; it could not be merely disregarded. 
Bartolus goes on to point out that certain of the 
" Ultramontani " held the contrary — "nam civitas con- 
tinetur appellatione reipublicae improprie....Sed nos 
debemus legem intelligere secundum propriam signi- 
ficationem." On the other hand, he says, other doctors 
support the Gloss 3 , relying on this law and on C. xi. 



of the law — " Plebs urbana sicut in orientalibus quoque provinciis 
observatur etc." 

1 Comment, on Codex, Part i. (C. n. 53. 4), p. 286, §§ 1-2. 

2 This particular law of the Codex runs : ' ' Eespublica minoris 
jure uti solet; ideoque auxiliurn restitutionis implorare potest." The 
question in dispute then is whether only the Respublica Romanorum 
can enjoy the right. 

3 We note that, according to Bartolus, some of the Ultramontani 
are clinging to the old view, which we ascribed to the Glossators. 
The Gloss, of course, means to Bartolus the Glossa Magna of 
Accursius, which marks the close of the period of the Glossators. In 
the end, we have seen, the Glossators had conceded that " improprie " 
the term Respublica might be applied to other Civitates than Rome ; 
these Ultramontani are now going back and say that we have no 
business to understand laws "improprie." Bartolus himself again 
maintains the applicability of the term to any Civitas in Comment, on 
Codex, Part i. (C. iv. 31. 3), p. 476: " Quaero de qua republica 
loquitur hie. Quidam dicunt de republica Romanorum. Veritas 
est quod idem in qualibet alia civitate. Ita videtur sentire glossa." 



118 THE EMPIRE AND THE CIVITATES [CH. 

29. 3 1 , "quae loquuntur generaliter." Finally Bartolus 
gives other reasons to show that the opinion of the 
Gloss is correct 2 ; and then, it is worth noting, he 
follows Jac. Buttrigarius in holding that, as regards 
"restitutio," which is the subject of this law, Castra 
and Villae, which " habent multitudinem hominum et 
habent regi per suos administratores," are on the same 
level as Civitates — "tunc in eis est eadem ratio quae in 
civitatibus." 

But the best and most final proof that Bartolus, for 
his part, is quite determined not to limit the term 
Respublica to any narrow interpretation, is that he 
frequently and without discussion uses the term, as 
applicable either generally to any Civitas, or to some 
particular Civitas other than Rome. Thus he notes 
that " banniti, qui possunt impune offendi, perdunt 
omnia jura civitatis suae," and that the statute, by 
which this is permitted, "non est in beneficium 
offendentis, sed favore reipublicae 3 ." Again, to take 
an example in which a particular Civitas is concerned : 
" Nota quod per dissensiones civiles publica res laeditur. 
Hoc facit pro prioribus' hujus civitatis, qui habent 
arbitrium super bono et pacifico statu civitatis, ut 
possint facere statuta ut tollatur materia brigarum et 
dissensionum inter cives, quia, per hoc reipublicae con- 
sulitur 4 ." 

1 Which runs: " Rempublicam ut pupillam extra ordinem juvari 
moris est." 

2 " Praeterea lex debet extendi per identitatem rationis, non enim 
est aliud mens legis quam ratio.... Sed eadem est ratio in qualibet 
civitate quae est in republica Romanorum, quia per alios reguntur, 
sicut minores reguntur per tutores et curatores etc." 

3 Comment, on Infort. Part i. (D. xxiv. 3. 49), p. 80, § 5. 

4 Comment, on Dig. Nov. Part n. (D. xlix. 15. 21, § In civilibus), 



II] THE EMPIRE AND THE CIVITATES 119 

(2) We have purposely abstained from quoting one 
of the most important passages on this question in the 
commentaries of Bartolus, because, while we have been 
able to produce quite sufficient evidence to illustrate 
his position, it was better to reserve this particular 
passage until we came to the question of the Fiscus. 
Bartolus distinguishes in this passage 1 between the 
Fiscus and the Respublica. The Fiscus or Camera 
Imperialis is " quidquid ad commodum pecuniarium 
Imperii pertinet"; other things, "quae ad jurisdictiones 
et honores Imperii, et non ad commodum pecuniarium 
et bursale pertinent, continentur nomine reipublicae et 
non fisci." The Fiscus is thus denned as essentially 
Imperial ; so is the Respublica, But the Respublica 
we have already seen conceded to the Civitates. Bartolus 
now considers the relations between the Fiscus and the 
Respublica; and, amplifying his treatment of the latter, 
he gives the term four meanings. First the Respublica 
may stand for " the whole universal Empire." Secondly 
it may stand for the "respublica Romanorum." Thirdly 
for the Respublica of any Civitas. Lastly for the 
Respublica of any Municipium 2 . 

p. 636. Cf. Comment, on Codex, Part i. (C. n. 7. 2), p. 208: " Nota 
ex hac lege, et tene menti, quod advocatus, qui habet aliquod officium 
in civitate, non potest ire extra civitatem. Secundo nota quod potest 
esse advocatus, praeterquam contra rempublicam. Ex quo babes, quod 
qui salarium habet ex republica, non debet esse advocatus contra rem- 
publicam. Et sic facit quod doctores bujus civitatis salariati non 
possunt esse advocati contra rempublicam bujus civitatis." Cf. also 
Comment, on Big. Nov. Part n. (D. l. 9. 4), pp. 670-1, §§ 18-9. 

1 Comment, on Codex, Tres libri (C. x. 1, sup. rubric), p. 1, 
§§ 3-7. 

2 In the Commentary on the Authenticum it would at first sight 
seem as if Bartolus for once does not extend the term Respublica to 
the Civitates. He says, discussing again the relations of Fiscus and 



120 THE EMPIRE AND THE CIVITATES [CH. 

According to the first meaning of Respublica, the 
Fiscus is to the Respublica as species to genus — "posito 
fisco, ponitur respublica, sicut posito homine, ponitur 
animal, non econtra." That is to say, the Fiscus is con- 
tained in the universal Respublica, is a specific branch 
of the general administration of the Empire. But if 
Respublica be taken as meaning the " respublica 
Romanorum " — then, in so far as once the " respublica 
Romanorum " itself had " regimen universale," this con- 
nection between the two terms holds good ; but if we 
take the "respublica Romanorum" as something separate 
from the universal Roman Empire — "ut in jurisdictione 
quam habebat (i.e. the respublica Romanorum in a 
limited sense) infra centesimum lapidem...et in aliis 
juribus quae infra territorium suum habet" — then there 
is no connection between Respublica and Fiscus. 
Finally, if Respublica be taken " pro republica alterius 
civitatis vel municipii, sine dubio non est idem cum fisco." 

So far then, though the Respublica has been granted 
both to Civitates and Municipia, the Fiscus is being 

Respublica : ' ' Nota quod respublica accipitur pro toto universali Im- 
perio. Aliquando accipitur pro republica Romanorum seu fisci. 
Aliquando accipitur pro civitate Romana." He then cites laws for 
and against the Republic and Fiscus being considered "idem," but 
does not decide. If, however, we continue the passage, we see that 
here too Bartolus is really extending the Respublica to any Civitas. 
" Secundo ex hac glossa nota," he says, " quod lex finalis C. de SS. 
Eccl. (C. i. tit. 2) non habet locum in municipio seu castro; quod 
apparet, quia ista glossa ex casu quo respublica ponitur pro municipio 
allegat glossam legis ' Sed et hi,' § penult. D. de publ. (D. xxxix. 4. 13). 
Sed quando ponitur pro civitate, allegat glossam legis finalis C. de 
SS. Eccl. Intellige ergo legem illam in civitate tantum, et quod ille 
lex non habet locum in municipio tenet glossa expresse in lege ' Sed 
et hi. '...In contrarium quod ilia lex habeat locum, posset forte esse 
verum, cum illud sit beneficium Principis etc." Comment, on Authent. 
Collatio i. (De Haeredibus et Falcidia, sup. rubric), pp. 1-2, §§ 2-3. 



II] THE EMPIRE AND THE CIVITATES 121 

retained as a something essentialty connected with the 
" whole universal Empire." But it is clear that in the 
actual state of Italy, where the Imperial authority was 
almost annihilated, and where the Civitates, whether 
still free or under a tyrant, did actually form indepen- 
dent States, it was of the utmost importance that the 
term Fiscus, and the rights connected with it, should 
be made applicable to each of these independent 
authorities. This Bartolus does by recurring to the 
ever-present distinction between Civitates which do, 
and those which do not, acknowledge a superior. "Nota 
glossam," he says in the Commentary on the Digest 1 , 
4i quae dicit quod bona vacantia non applicantur alteri 
civitati, sed fisco. Et verum dicit in civitatibus 
quae recognoscunt superiorem. Sed in his quae 
non recognoscunt superiorem, de jure vel de facto, ut 
civitates Tusciae, est ipsamet civitas fiscus. Vocatur 
enim populus liber.... Et ideo in Marchia, et in aliis 
provinciis Ecclesiae, omnia quae dicuntur de fisco, in- 
telliguntur de Ecclesia. In illis vero civitatibus, quae 
non recognoscunt aliquem in dominum, quae dicuntur 
de fisco, intelliguntur de suo communi." Again, " Ad- 
verte, ista glossa dicit quod civitates non possunt habere 
bonorum possessionem nisi ex testamento ; quia quando 
bona sunt vacantia, debentur fisco, non civitati. ... Et hoc 
puto verum in civitatibus quae Principem recognoscunt. 
Sed si civitas Principem non recognoscit, tunc ipsa est 
camera sui ipsius, et sic sibi bona vacantia quaerentur, 
et ita de facto observatur 2 ." We see, then, that Bartolus 

1 Comment, on Dig. Vet. Part i. (D. v. 3. 22, § Ait Senatus), p. 540. 

2 Comment, on In fort. Part n. (D. xxxvn. 1. 3, § A municipibus), 
p. 472, § 2. 



122 THE EMPIRE AND THE CIVITATES [CH. 

provides a solution on his wonted basis of fact. The 
Church and the Civitates do not, in fact, recognise the 
Emperor as superior. Therefore, where the Law Books 
speak of the Fiscus, in the " territory of the Church " 
the Church itself must be read for Fiscus, in each inde- 
pendent Civitas the Civitas itself must be considered 
the Fiscus. The Fiscus is not, indeed, in the relation of 
species to genus, as regards the Church or Civitas, as it 
is to the "whole universal Empire"; but where a power,, 
such as the Church or a Civitas, withdraws itself from 
the " whole universal Empire," by not recognising the 
Emperor as superior, that power must be its own 
Fiscus 1 . 

(3) If we except the cities within the territory of 
the Church, all Civitates are de jure a part of the 
Empire 2 , and de jure the Emperor is their superior 3 . 

1 Cf. Comment, on Codex, Tres libri (C. x. 10. 1), p. 18, § 7: 
' ' Quaero utrum pro delictis civitas possit accipere bona ? Glossa 
dicit quod non....Secus puto in civitatibus quae de jure vel de facto 
hodie non recognoscunt superiorem, et sic populus est liber, ut 
notatur in L. Hostes D. de Capt. et postl. (D. xlix. 15. 24) quod 
ipsamet civitas sit fiscus, et sic possit capere bona vacantia, et etiam 
ex delicto, sicut fiscus." Also Comment, on Dig. Nov. Part n. (D. 
xlix. 14. 2), p. 619, §2: "In eo quod dicit (i.e. the Gloss), quod 
civitatibus non deferuntur bona vacantia... dicit veritatem de jure 
communi. Sed debetis scire, quod quaedam sunt civitates quae 
non recognoscunt superiorem, et sic populus liber est, et sic ipsemet 
sibi fiscus... et tunc bona vacantia acquiruntur sibi, et fisco." Also 
Comment, on Codex, Part i. (C. i. 1. 1), p. 19, § 50. 

2 Vide e.g. Comment, on Infort. Part n. (D. xxxvi. 1. 26), p. 433: 
"Civitatibus, quae non sunt hostes Imperii, potest fideicommissum 
relinqui, et agere poterunt per suos syndicos....Innuit quod quaedam 
civitates non sunt sub Imperio. . . . Solutio : Intelligo, sub Imperio omnes 
sunt de jure, de facto non. Sunt tamen quaedam, quae etiam sub 
Imperio de jure non sunt, ut civitates donatae Ecclesiae. Tenet enim 
Ecclesia quod talis donatio valuit." 

3 Just now, indeed, in the question of the Fiscus, we saw that 



II] THE EMPIRE AND THE CIVJTATKS 123 

Their independence is de facto, and so far Bartolus 
acknowledges that to these cities, as in fact independent, 
may be ascribed the rights connected with the terms 
Respublica and Fiscus, which de jure do not belong to 
them. But more still was needed to establish their 
complete independence. 

" Quaero unde hoc est," asks Bartolus 1 , "quod video, 
quod omnes rectores civitatis et castrorum hodie per 
Italiam exercent ea quae sunt meri vel mixti imperii 2 ." 
In answer, he says that there are three kinds of " uni- 
versitates." " Una est larga, quae facit provinciam 
et haec de jure communi habet merum et mixtum 
imperium. . . . Secunda universitas est minus larga, quae 
constituit civitatem, et huic de jure communi cohaerent 
jurisdictiones tantum, usque ad certam quantitatem et 
in levioribus criminibus, sed merum et mixtum imperium 
non habent magnum...." Bartolus then makes certain 

Bartolus mentions cities which " de jure vel de facto" do not 
recognise a superior. Presumably those who de jure do not recog- 
nise a superior, must be freed by concession, such as Perugia — vide 
above, p. 78. In general Bartolus consistently maintains that de jure 
the Emperor is superior of all the Italian cities. 

1 Vide Comment, on Dig. Nov. Part i. (D. xxxix. 2. 1), p. 69, 
§3. 

2 Cf. Consilium, i. 189, p. 119, § 1: " Nos habemus triplicem 
universitatem habitationum et praediorum : imam largam quae facit 
provinciam, et haec universitas habet jurisdictionem et mer. et mixt. 
imperium de jure communi.... Secunda universitas minus larga quae 
constituit civitatem, et huic universitati cohaeret jurisdictio tantum 
usque ad certam quantitatem in levioribus criminibus, sed merum et 

mixtum imp. non habet Fallit in quibusdam civitatibus in quibus 

est hoc specialiter concessum a jure, ut Romae...et in aliis civitatibus 
quae hoc habent ex consuetudine vel privilegio....Ex his causis juris- 
dictio dicitur cohaerere loco seu territorio. Tertia universitas est 
minima ut castrum, villa, vicus...et huic universitati nulla cohaeret 
jurisdictio, sed alterius civitatis jurisdiction! subesse dicitur," etc. 



124 THE EMPIltE AND THE CIVITATES [CH. 

exceptions — some cities, as for example Rome, have 
Merum et Mixtum Imperium " de jure communi," others 
by privilege or prescription, others merely de facto. 
" Est tertia universitas minima," he continues, " ut 
castrum, villa et similia : et ista, si quidem subsunt 
alicui civitati vel alteri castro magno, nullam juris- 
dictionem habent, sed civitas, cui subsunt, habet 
jurisdictionem in eis " ; he goes on to say that they 
too may, by special privilege or in special circumstances, 
have limited Jurisdictio and even Merum et Mixtum 
Imperium. 

With this we may compare a passage to which we 
have referred above 1 . The division of the world is said 
to be "de jure gentium." Bartolus distinguishes two 
kinds of division — that of the Provincia or Regnum on 
the one hand, where men dwell together " in aedificiis 

1 Vide Comment, on Const. Qui Sint Eebelles (ad verb. Lombardiae) , 
p. 285, §§ 2-6 : " Sed pro liujus declaratione sciendum est quod divisio 
orbis terrarum de jure gentium est....Et haec divisio fuit eorum qui 
habitant simul in aedificiis in unum collatis, et sic communiter 
habemus tria nomina, scilicet civitas, castrum et villa.... Quaedam 
divisio est eorum qui habitant simul, sed aedificiis separatis, et haec 
appellatur provincia vel regnum, vel sunt alia nomina universalia 
significantia separationem linguarum, ut in Italia, Alemania, Francia, 
Graecia, et similia... de quorum quolibet videamus. Villa in Francia 
idem est quod civitas. Nos autem dicimus villas aedificia sine muris 
vel fossis, quae villae seu vici nullam habent jurisdictionem de jure 
communi, sed subsunt alicui civitati.... Castrum dicitur quasi casaalta 
seu fortis et munita muris seu vallo...et similiter non consueverunt 
habere jurisdictionem de jure communi, sed sunt sicut vici.... Habent 
tamen quosdam magistratus, qui illic ponuntur a civitatibus quibus 
subsunt.... Civi tas vero secundum usum nostrum appellatur ilia quae 
habet episcopum; ante tamen quam essent episcopi erant civitates. 
Et civitati competit potestas eligendi sibi de jure communi defensores, 
qui habeant jurisdictionem, non autem merum imperium vel mixtum.... 
Fallit in urbe Komana...et in aliis quae habent ex privilegio vel ex 
consuetudine...." 



Il] THE EMPIRE AND THE CIVITATES 125 

separatis," and that of the Civitas, Castrum or Villa, 

where men dwell together " in aedificiis in unum col- 

latis." According to the Italian usage of the terms, 

the Villa and the Castrum are dependent upon some 

Civitas and, " de jure communi," have no Jurisdictio 

nor magistrates appointed by themselves. " Secundum 

usum nostrum " the Civitas is a city with a bishopric, 

but Bartolus points out that there were cities before 

there were bishops. The really distinguishing mark of a 

Civitas is that it has the right, "de jure communi," to 

elect its own " defensores " who have Jurisdictio, but 

not Merum et Mixtum Imperium. " Et quia secundum 

canones episcopi debent ordinari in dictis locis, ubi sunt 

dicti officiales...ideo insurrexit consuetudo quod locus 

habens episcopum sit civitas, tamen vero sine episcopo 

dicitur civitas eo quod habet officiales praedictos et 

jurisdictionem. Et sic patet quod licet ex causa una 

civitas privetur episcopo, non tamen per hoc desinit 

esse civitas." He then goes on to consider whether the 

Castra, " quae sunt per Italiam et habent dictas juris- 

dictiones," are to be called Civitates. If they were once 

Civitates, but no longer have a bishopric, " proprie " 

they are still Civitates. In other cases, either this 

Jurisdictio was granted to them, " ut civitati aut ut 

castro aut simpliciter dicendo tali terrae vel tali comi- 

tatui. Primo casu erit civitas, nam civitatem facit 

Princeps eo ipso quod sibi scribit ut civitati 1 ... Nam 

dicendo quod sit civitas, videtur sibi concedere omnia 

1 Cf. Selden, Table Talk (p. 23) : " What makes a city? Whether 
a Bishoprick or any of that nature? 'Tis according to the first 
charter which made them a corporation. If they are incorporated 
by name of Civitas, they are a City, if by the name of Burgum, then 
they are a Burrough." 



126 THE EMPIRE AND THE CIVITATES [CH. 

privilegia civitatis....Secundo casu non erit ci vitas, sed 
castrum habens privilegia civitatis....Tertio casu erit 
ci vitas, quia large interpretatio facienda est in conces- 
sione hujus beneficii." 

Thus it is not, properly or historically, the bishopric 
that makes the Ci vitas, though it may be "in usu 
communi 1 ." The distinguishing mark between the 
Provincia and the Civitas is the right to exercise Merum 
et Mixtum Imperium. There may be Civitates enjoying 
the right, but they are not the normal cases. Normally 
the Civitas has the right to choose its own "defensores," 
who are not, like the Praesides Provinciarum, " majores 
juclices," and therefore have only a limited Jurisdictio. 
In the same way there may be Castra with this limited 
Jurisdictio or even with Merum et Mixtum Imperium : 
they too are exceptional. Normally the Castrum, like 
many of the small Civitates, is dependent on some 
Civitas. "Isti enim," says Bartolus in his Tract de 
Regimine Civitatis 2 , explaining why he omits to discuss 
these "parvi populi," " vel alteri civitati subsunt...vel 
alteri civitati vel regi confoederantur aliquo foedere, 
ita quod alterius majestatem venerentur...ut videmus 
in civitatibus 3 et castris quae sub protectione civitatis 

1 Cf. Comment, on Infort. Part i. (D. xxvu. 1. 6, § Est autem), 
p. 199 : " Olim nescio qualiter vocabant antiqui civitatem. Sed hodie 
secundum constitutionem civitas ilia dicitur quae habet episcopum et 
adhuc non vidi illam constitutionem." Comment, on Infort. Part n. 
(D. xxx. 1, 76, § Vicis), p. 54: "In usu vero communi dignitas epis- 
copalis quae est in loco facit civitatem. Et ita videtur sentire Federicus 
Imperator in constitutione ilia de pace Constantiae." 

2 P. 420, § 26. 

3 Such in Bartolus' own day were Assisi, Spoleto, Gubbio, etc., 
all of which .were actually Civitates. The two latter he himself 
mentions as dependent on Perugia in Comment, on Big. Nov. Part i. 
(D. xliii. 18. 1, § Si tibi fundum), p. 466, § 5. 



II] THE EMPIRE AND THE CIV1TATES 127 

hujus Perusinae sunt. Sicut enim corpus humanum 
debile et parvum non potest per se regi sine auxilio 
tutoris, et curatoris, ita isti populi parvi per se nullo 
modo regi possunt, nisi alteris submittantur vel alteri 
adhaereant." We too may follow Bartolus in omitting 
these small dependent cities. It is not they, but the 
flourishing, independent city-states of Italy which offered 
the problems, in the solution of which Bartolus was to 
play so great a part. But it is now necessary to inquire 
more closely into the meaning of these terms, Jurisdictio 
and Merum et Mixtum Imperium. 

It must be clear, to begin with, that the medieval 
lawyers are using the terms Jurisdictio and Im- 
perium in a manner that a mere reference to Roman 
law, whether Justinian or ante-Justinian, will not 
explain. Their use of the terms is of course based on 
such definitions as that given in D. II. 1. 3 1 , but such 
definitions are not sufficient to explain the medieval 
use of these terms. To understand that we must turn 
back for a little into the history of communal inde- 
pendence in Italy. 

The turning-point in that history was the Investiture 
struggle. Up to that point the power of the king of 
Lombardy, or Italy, over the north-Italian towns, had 
found its safeguard, first in the authority of the counts, 
and later, when the counties began to be split up, in 
the authority of the bishops and lay nobles, to whom 



1 Which runs: "Imperium aut merum aut mixtum est. Merum 
est imperium habere gladii potestatem ad animadvertendum facinorosos 
homines, quod etiam potestas appellatur. Mixtum est imperium, cui 
etiam jurisdictio inest, quod in danda bonorum possessione eonsistit. 
Jurisdictio est etiam judicis dandi licentia." 



128 THE EMPIRE AND THE CTVITATES [CH. 

the rights of the counts were gradually transferred. 
We must try to avoid, in the space of these few pages, 
any of the most controversial points in the early history 
of the Italian towns. Of all things, perhaps, it is most- 
needful to remember the golden rule of medieval 
history, that generalisations on the history of medieval 
cities are only permissible on the understanding that 
they are generalisations, and that each individual city 
has its individual history with details of its own, by 
which it conforms, either more or less, to the general- 
ised standard. With this in mind we need not be 
afraid of overestimating the importance of the part 
played by the bishops in the history of the Italian 
cities. The movement by which they stepped into 
the place of the counts was not universal, but it was 
general. It was not a single step, but a gradual ex- 
tension of privileges. It was not the only path that 
led to communal independence, but, if not the most 
important, it was one of the most important 1 . 

"In the tenth and eleventh centuries," says Mr Fisher, 
"when the Emperors paid but flying visits to Italy, the 
Italian bishops were the mainstay of German influence 
south of the Alps 2 ." These bishops were in very 
great numbers Germans 3 ; they were appointed by the 

1 Vide Pertile, Storia del diritto italiaiio, vol. n. Part i. p. 19: 
' ' La signoria vescovile non f u dunque causa unica e diretta della 
liberta communale, ma la agevolo e favori; non causa universale, 
perche in molte citta il vescovo non ebbe dominazione temporale." 
Vide also Bethmann-Hollweg, Der Civilprozess des Gemcinen Eechts, 
vol. v. Abtheilung 2, pp. 199-209. He too notes, like Pertile, that 
there is not "eine allgemeine Massregel," in the transference of the 
Comitatus to the bishop. 

2 Fisher, The Medieval Empire, vol. n. p. 230. Vide also p. 149. 

3 Ibid. p. 230: "From 950-1060, a period of imperfect records, 



II] THE EMPIRE AND THE CIVITATES 129 

Emperors ; and by the eleventh century, when the 
process of transferring to them the authority of the 
counts was completed, they stood, we must remember, 
in direct feudal relations to the king-emperor. Then 
came the great reform movement. The policy of ruling 
Italy by Germans reached its height in the direct 
appointment by Henry III of three German Popes. 
Yet from this very act sprang the forces which were to 
destroy the German influence in Italy. The Papacy 
once purified, the party of reform was ready to purify 
the whole Church. The Cluniac movement of reform ; 
the beginnings of Italian nationalism ; theocratic theo- 
ries, some of which were as old as the ninth century 
and the papacy of Nicholas I, — all these causes com- 
bined to produce the Investiture struggle after the early 
death of Henry III. 

In that struggle the Lombard bishops were for the 
most part staunch supporters of the Emperor, while the 
Papacy naturally threw itself into alliance with the 
popular party of reformers, who were in opposition to 
their bishops. The struggle ended with the Concordat 
of Worms. Theoretically the Concordat did not affect 
the feudal relations between the bishops and the 
Emperor 1 . But in fact it broke the connection between 
them ; since, though the Emperor might still invest the 
bishop with the insignia of his delegated temporal 
authority, the election of the bishops passed out of his 

we can prove the presence of 47 German bishops in Italian sees, and 
the number should probably be more than doubled." 

1 Vide the text of the Concordat, consisting of the "Privilegium 
Imperatoris ' ' and ' ' Privilegium Pontificis ' ' in Monumenta Germaniae 
Historica, Constitutiones et Acta Publico- Imperatorum et Begum, 
vol. i. pp. 159-61. 



130 THE EMPIRE AND THE CIVITATES [CH. 

hands 1 . And, secondly, the opposition of the populace, 
fanned by the Papacy and the whole reform movement, 
had shaken the internal authority of the bishops' govern- 
ment. "The Gregorian movement," says Mr Fisher, 
"shook the Imperial control over the bishops; the 
communal movement destroyed their powers 2 ." 

We repeat again that communal independence did 
not come into existence only through the destruction of 
the connection between the Emperor and the bishops, 
but to a very great extent it did. At least, that com- 
munal independence existed as a fact after the Investi- 
ture struggle is indisputable. For our purpose, then, 
which is concerned rather with this independence as 
completed, than with its origins, we pass straight on to 
the next struggle — that between the Hohenstaufen and 
the cities themselves, which was again involved with the 
struggle between the Empire and the Papacy. 

Before we pass on, however, we must observe one 
change of great importance. The term Comitatus, 
used to designate the jurisdiction of the counts, and 
of the bishops and others, who succeeded them, passed 
with independence to the Civitates themselves. We 

1 Vide " Privilegium Pontificis," p. 161. The bishops and abbots 
of the ' ' Teutonicum regnum ' ' were indeed to be elected ' ' in praesentia 
tua," but it was the power of influencing the election of Italian 
bishops which was lost, and with it the control over Italy. The 
"electus" was to receive the "regalia per sceptrum" from the 
Emperor — ' ' et quae ex his jure tibi debet, faciat. ' ' But the investiture 
of the spiritual office was wholly resigned — vide the ' ' Privilegium Im- 
peratoris " : " Ego Henricus etc. . . .dimitto Deo et Sanctis Dei apostolis, 
Petro et Paulo, sanctaeque catholicae Ecclesiae omnem investituram 
per anulum et baculum, et concedo in omnibus ecclesiis, quae in regno 
vel imperio meo sunt, canonicam fieri electionem et liberam consecra- 
tionem" (p. 159). 

2 Fisher, loc. cit. 



II] THE EMPIRE AND THE CIVITATES 131 

hear of the Comitatus of the Civitas 1 . But now, from 
the eleventh century onwards, with the almost general 
disappearance of the counts and their successors, and 
still more under the influence of the great revival 
in Roman Law, a new term appeared, derived from 
Roman Law — Jurisdictio. Later appeared another 
term of Roman Law — the subject of our present 
inquiry — Merum et Mixtum Imperium, with special 
reference, says Ficker, to criminal jurisdiction 2 . 

Now the significance of this lies in the fact that 
we have here the Comitatus, which is a feudal term, 
implying feudal relations and rights, supplanted by 
terms of Roman Law. The revival of Roman Law 
was a part, the most important part, of a general anti- 
quarian revival, which set men's eyes and hearts fixed 
back on the old Roman Empire. But though the 
feudal king of Germany or Italy might be merged into 
the Princeps of Roman Law, Feudal Law could not be 
swallowed up by Roman Law. Roman Law had to 
accept feudalism. It incorporated the Libri Feudorum 
in the Corpus Juris as a tenth Collation in the 
Authenticum. And while it translated many of the 
terms of feudalism into terms of Roman Law, the 
Roman meaning of these terms was partly lost in the 
feudal meaning of the terms which they translated 3 . 

In the struggle for independence between Frederick I 
and the cities yet another term became prominent — the 

1 Vide Savigny, op. cit. vol. in. pp. 127-8 and the quotation from 
Otto of Freisingen in note b, p. 108. Ficker, Forschungen zur Reiches- 
und Rechtsgeschichte Italiens, vol. i. p. 238. 

2 Vide Ficker, op. cit. vol. i. p. 247. 

3 Cf. Gierke, Deutsche Genossenschaftsrecht, vol. in. p. 200. 



132 THE EMPIRE AND THE CIVITATES [CH. 

Regalia. Here again we are at the meeting of feudalism 
and Roman Law. 

The term Regalia was common in the eleventh cen- 
tury, and, for long after, the question of the rights con- 
tained in it was the subject of interminable dispute. In 
1158, at the Diet of Roncaglia, Frederick I issued his 
Gonstitutio de Regalibus 1 , which was incorporated in the 
Libri Feudorum. It was over the rights here claimed 
that the struggle between Frederick and the Italian 
cities, which fills his reign, and which continued under 
his successors, was fought out. 

In drawing up this list of Regalia Frederick had 
relied on the Roman lawyers of Bologna ; and Placentin, 
one of the Glossators, and after him many modern 
historians, notably Sismondi, have accused them of 
sacrificing the freedom of Italy to the absolutist prin- 
ciples of Roman Law 2 . But, as Savigny was the first 
to point out, the greater number of the Regalia are 
in part contrary to, in part foreign to, the law of 

1 It may be well to give this definition of the Regalia. Vide 
Monumenta Germaniae Historica, vol. cit. pp. 244-5. It runs thus: 
"Regalia sunt hec : Arimannie, vie publice, flumina navigabilia, 
et ex quibus fiunt navigabilia, portus, ripatica, vectigalia que vulgo 
dicuntur tholonea, monete, mulctarum penarumque compendia, bona 
vacantia, et que indignis legibus auferuntur, nisi que spetialiter 
quibusdam conceduntur, et bona contrahentium incestas nuptias, et 
dampnatorum et proscriptorum secundum quod in no vis constitution! - 
bus cavetur, angariarum et parangariarum et plaustrorum et navium 
prestationes, et extraordinaria collatio ad felicissimam regalis numinis 
expeditionem, potestas constituendorum magistratuum ad iustitiam 
expediendam, argentarie, et palatia in civitatibus consuetis, pisca- 
tionum redditus et salinarum, et bona committentium crimen 
maiestatis, et dimidium thesauri inventi in loco cesaris, non data 
opera, vel in loco religioso; si data opera, totum ad eum pertinet." 

2 Vide Savigny, vol. iv. pp. 171-8. 



II] THE EMPIKE AND THE CIVITATES 133 

Justinian 1 . The Regalia are the feudal rights of the 
Lombard king — and as such, said Savigny, indubitably 
Frederick had a legal right to them. It was the new 
Hohenstaufen conception of the Emperor as Princeps 
of the Law Books, and the new life of Roman Law, 
which obscured the really feudal nature of these rights 
both to contemporaries and to future ages. To succeed- 
ing ages in particular Frederick appeared at Roncaglia 
as Emperor; the king of Italy was lost in the Impe- 
rator Romanorum. Consequently the rights, which he 
claimed, must also appear as rights due to the Princeps 
of Roman Law. The greater number of those rights 
were won back for the cities by the peace of Constance. 

1 Savigny, ibid., asks (p. 174) — "1st es denn aber in der That 
romisches Eecht, was jener Bestimmung der Kegalien zu Grunde liegt? 
Fur die meisten und wichtigsten Punkte lasst sich geradezu das Gegen- 
theil behaupten." Vide also Blondel, Etude sur les Droits Regaliens et 
la Constitution de Roncaglia (in Melanges Paul Fabre, pp. 236-57), for 
a detailed study of the question. Of the Constitutio de Begalibus he says : 
" Ce document est surtout propre amontrer l'importance respective des 
anciennes conceptions germaniques en matiere de souverainete et des 
principes du droit rornain, dont les juristes qui entouraient a ce moment 
Frederic Ier, etaient imbus" (p. 236). Blondel quotes the list of Ke- 
galian rights, as given in the Constitutio itself and other contemporary 
documents (pp. 245-7). He believes the influence of the Bolognese 
jurists on the Emperor has been overestimated : " Placentin lui-meme 
se contente de leur reprocher un abus du droit romain, au sens que le 
droit romain, d'apres lui, n'a pas ete suivi, et j'estime en effet, qu'on 
peut retrouver dans les dispositions de la diete de Koncaglia des 
principes germaniques dissimules sous des apparences romaines, mais 
qui ont plus d' importance au fond que le droit romain proprement dit " 
(p. 248). And cf . again p. 251 : " S'il est certain que Frederic chercha 
a tirer le meilleur parti possible des principes du droit romain, il n'est 
pas douteux que la plupart des droits, qui sont revendiques par lui 
comme droits regaliens, ne sont pas d'origine romaine." Vide also 
Pomtow, Ueber den Einfluss der altromischen Vorstellungen vom Staat 
auf die Politik Kaiser Friederichs I und die Anschauungen seiner Zeit, 
pp. 40-52. 



134 THE EMPIRE AND THE CIVITATES [CH. 

But the struggle continued ; and when the Roman 
character of the Empire was conceived still more 
emphatically by Frederick II, the true origin of these 
rights was but the more liable to be obscured. 

This digression has necessarily been somewhat long, 
and we must now, therefore, pass on to Bartolus himself. 
When we come to his commentaries, we find that the 
term Regalia occupies but a very small place in his 
discussions on the independence of the Civitas. On 
the other hand the peace of Constance is quite often 
mentioned by Bartolus; but nearly always in the 
question whether thereby the cities can exercise Merum 
et Mixtum Imperium 1 . The conclusion is clear. We 
see that the independence, for which the cities fought 
in the struggle over the Regalia, is conceived by 
Bartolus as preeminently bound up with the right to 
exercise Merum et Mixtum Imperium 2 . Consequently 
these terms must be interpreted by us, not merely in 
the light of their original meaning in Roman Law, but 
also bearing in mind their connection with the rise 
of communal independence and the struggles which 
followed between the cities and the Emperor. 

"Regularly" or "de jure communi," we have seen, 
the Civitas, as a "universitas minus larga," does not 
have Merum et Mixtum Imperium, but only a limited 

1 The terms Merum et Mixtum Imperium never occur in the peace 
of Constance. Vide the text of the peace in Monumenta Germaniae 
Historica, vol. cit. pp. 411-8. 

2 On one occasion at least Bartolus seems to include Merum et 
Mixtum Imperium among the Eegalia. Vide Comment, on Dig. Nov. 
Part ii. (D. xlix. 14. 2), p. 619: "Quaedam sunt eivitates quae, licet 
recognoscant superiorem, tamen habent merum et mixtum imperium 
ex principis concessione et habent alia regalia, ut sunt quae ponuntur 
in Feudis, tit. Quae sint regalia...." 



II] THE EMPIRE AND THE CIVITATES 135 

Jurisdictio 1 . On the other hand, we have seen that 
some Civitates are recognised as exercising Merum et 
Mixtum Imperium, whether by concession 2 , prescrip- 
tion or usurpation. "Scitis," he says 3 , "quod civitates 
Italiae communiter non habent merum imperium, sed 
usurpaverunt. Dico tamen si ci vitas vellet se defendere 
et merum et mixtum imperium exercere, quod habet 
necesse allegare concessionem Principis. Item longissi- 
mum tempus,quo dicta ci vitas merum imperium exercuit, 
isto casu posito quod non probaretur de concessione Prin- 
cipis. Tamen si probaret se exercuisse merum imperium, 

1 It is important to keep in mind that Jurisdictio is a double term. 
There is first "jurisdictio in genere " of which "imperium" and 
"jurisdictio simplex" are both species. "Imperium" is further 
subdivided into "merum imperium" and "mixtum imperium." 
Finally "merum imperium," "mixtum imperium" and "jurisdictio 
simplex" are all subdivided into six grades. I have attempted to 
explain this in greater detail in Appendix C, below. It is of course 
only "jurisdictio simplex" which the "rectores civitatum" have de 
jure. Cf. with the passages already quoted Comment, on Codex, 
Part ii. (C. vi. 33. 3, § Sin autem), p. 96, § 13: "Quaero quis sit 
competens judex. Dicit gl. quod competens judex inspicitur circa 
dua. Primo circa jurisdictionem ; quia est necesse quod sit talis 
judex qui habeat merum imperium; non enim potest hoc expediri 
per magistratum municipalem " ; Comment, on Authenticum (Collatio 
ii. De Incestis Nuptiis, § Pro Incestis), p. 37; Comment, on Codex, 
Part i. (C. i. 4. 16, Authentic. Praesides), p. 80 : " Defensores civitatum 
de jure communi non habent nee merum nee mixtum imperium nisi 
in causis pecuniariis usque ad centum aureos," where one would have 
thought that ' ' causae pecuniariae usque ad centum aureos ' ' would 
have fallen under the heading of "jurisdictio minima," the last 
grade of "jurisdictio simplex" — vide Appendix C, below. 

2 Especially as contained in the peace of Constance. Vide, e.g. 
Comment, on Codex, Tres libri (C. xi. 29, supr. rubric), p. 87: 
" Glossa dicit quod sunt quaedam civitates in Lombardia, quae 
habent merum et mixtum imperium ex constitutione Federici de pace 
Constantiae." 

3 Vide Comment, on Codex, Part i. (C. n. 3. 28), Antiqua Lectura, 
p. 160, §5. 



136 THE EMPIRE AND THE CIVITATES [CH. 

valet." Bartolus then refers to a law of the Digest 
(D. II. 1. 3). But before we turn to his commentary 
on that law, we must consider one or two points in 
the foregoing passage. Bartolus begins by saying that, 
if the Civitates exercise Merum et Mixtum Imperium, 
they do so by usurpation. If they wish to prove 
a title to justify so doing, they must prove a con- 
cession from the Emperor. Failing that they must 
prove prescription and "longissimum tempus." Yet, 
he concludes, all the same if they prove that they have 
exercised it, it is valid; which is but to say, if they 
prove that they have usurped it, it is valid. This seems 
a rather lame conclusion. But in truth it is a fine 
example of Bartolus' aim and method, of his absolute 
adherence to fact. He saw that it was neither possible 
nor desirable to deny the Italian cities this right. 
Hence, however contrary it be to the letter of the law, 
it must be accepted. If concession or prescription can 
be proved, so much the better ; if not, usurpation must 
be accepted as a valid title to the right, and put on 
a level with concession and prescription. Let us con- 
sider some more examples. 

Bartolus referred us to D. II. 1. 3. In his com- 
mentary on that law he asks 1 — "Quibus judicibus 
competat merum imperium? Respondeo, quandoque 
aliquis praeest alicui universitati, quae facit provin- 
ciam : tunc habet merum imperium de jure communi... 
Quandoque quis praeest alicui universitati, quae facit 
non provinciam, sed civitatem : et tunc de jure com- 
muni regulariter non habet merum imperium neque 
mixtum. Fallit in civitate Romana...fallit etiam in 
1 Comment, on Dig. Vet. Part i. p. 164, § 7. 



II] THE EMPIRE AND THE CIVITATES 137 

multis aliis civitatibus quae habent immunitatem ex 
concessione facta per Principem, ut in extravag. de pace 
Constantiae. Item fallit in multis aliis, quae habent 
hoc ex praescriptione vel consuetudine, ut videbitis. 
Quae praescriptio, qualiter procedat, dicemus (in lege 
More 1 ) infra, et ideo hie non euro dicere qualiter pre- 
scribatur." Here we have, to begin with, the distinction 
between the Provincia and the Civitas. The government 
of the Civitas does not have Merum Imperium — if it 
has, it must be based on concession or prescription. 
Bartolus defers discussing prescription until he comes 
to a later law — D. II. 1. 5 — and before we pass on to 
his commentary on that law it may be well to give 
one or two more examples of concession, noticing 
especially, first how frequently the concession is referred 
to the peace of Constance, secondly how frequently it is 
bracketed, as a title to the right to exercise Merum et 
Mixtum Imperium, with usurpation. 

Thus "defensores civitatum de jure communi non 
habent nee merum nee mixtum imperium, nisi in causis 
pecuniariis usque ad centum aureos. Hodie vero sunt 
quaedam civitates in Lombardia, et etiam in Tuscia, 
quae habent ex privilegio ab Imperio, quaedam ex 
ilia constitutione de pace Constantiae, quaedam ex 
usurpatione 2 ." 

Secondly, we should refer again to a passage which 
is especially interesting, in that Bartolus mentions the 

1 D. ii. l. 5. 

2 Vide above, p. 135, where the first sentence has already been 
quoted. Cf. Comment, on Dig. Vet. Part i. (D. iv. 4. 17, § Nunc 
videndum), p. 438: " Sunt multae civitates quae habent immunitatem 
et merum et mixtum imperium ex constitutione Federici Imperatoris, 
aliae ex usurpatione." 



138 THE EMPIRE AND THE CIVITATES [CH. 

Regalia along with Merum et Mixtum Imperium. 
"Quaedam sunt civitates, quae licet recognoscant supe- 
riorem, tamen habent merum et mixtum imperium ex 
Principis concessione, et habent alia regalia (ut sunt 
quae ponuntur in Feudis, tit. Quae sint regalia) 1 ." 
We see then that the exercise of Merum et Mixtum 
Imperium does not necessarily imply that those who 
exercise it do not recognise the Emperor as superior. 
On the other hand, we have seen that Bartolus again 
and again does refer to such Civitates, as not recog- 
nising a superior. This recognition of a superior, 
however, Bartolus only mentions, we now see, in the 
case of those who exercise Merum et Mixtum Imperium 
by concession. The very acceptance of a right by 
concession acknowledges a superiority in the conceder ; 
we may compare Bartolus' argument that the kings of 
France or of England, if they withdraw themselves 
from the Empire by concession, on that very account 
acknowledge themselves to be a part of the Populus 
Romanus. 

As to prescription, Bartolus, in a passage given 
above, deferred discussing it until he came to a later 
law — D. II. 1. 5. There, however, he again puts 
off the subject. "Quaerit glossa — quis dat ordinariam 
jurisdictionem? Respondet, lex, Princeps, consuetudo, 
populus, universitas et similia...Hoc quod dicit de 
consuetudine, intelligas de consuetudine illius populi, 
qui posset illam jurisdictionem dare expresse statuendo. 
Si enim intelligeres de praescriptione, scilicet an prae- 
scriberet jurisdictionem, ista esset longa quaestio...et 

1 Comment, on Big. Nov. Part n. (D. xlix. 14. 2), p. 619. 



II] THE EMPIKE AND THE CIVITATES 139 

ponit earn Cynus...et Gulielmus. . . Alias tibi dicam, non 
potui modo cogitare, quia profunda quaestio est 1 ." 

In another passage, quoted above, we have seen 
that Bartolus practically accepts prescription as a title 
to a de facto exercise of Merum et Mixtum Imperium. 
The cities of Italy, he said, "communiter" do not have 
Merum Imperium, but have usurped it. If they 
wish however to defend their exercise of it, they must 
prove concession; failing that prescription — "longissi- 
mum tempus, quo dicta civitas merum imperium exer- 
cuit" — though he adds that if they prove merely that 
they have exercised it — "valet." Elsewhere we have 
seen it put on a level with concession 2 , and we may 
therefore say that Bartolus accepts prescription, but 
not without some doubts. 

Both his general acceptance and his doubts come 
out in an important reservation, which he makes more 
than once, that the Civitates cannot prescribe Merum 
et Mixtum Imperium during a vacancy of the Empire. 
Thus, in a most important passage in the Commentary 

1 Comment, on Big. Vet. Part i. (D. n. 1. 5), p. 169, § 9. 

2 Vide above, p. 137. This is the first of the passages in which 
Bartolus deferred discussing the question. One may compare Comment, 
on Authenticum, Collatio in. (De Defensoribus Civitatum, § Jusjuran- 
dum), p. 40, §5, where he says: "Nota ergo ex hac glossa quod 
merum et mixtum imperium potest consuetudine praescribi." He 
cites several texts from the Law Books, adding however that Azo 
holds that "civitates, quae habent privilegia, habent usurpationem, 
non consuetudinem, quod dicit per consuetudinem non potest mero et 
mixto Imperio praescribi." He refers to what he will say on a law 
of the Tres libri (C. xn. 60. 8), vide p. 146, §2, where however we 
merely find: " Secundo nota quod consuetudo dat jurisdictionem 
ordinariam, sicut lex," after maintaining that a statute cannot take 
away jurisdiction, which is given by Consuetudo, though it can that 
given by Lex. 



140 THE EMPIRE AND THE CIVITATES [CH. 

on the Codex 1 , he says that if a Ci vitas is held by a 
tyrant, and another city occupies "de territorio illius 
vel de jurisdictione illius," the "patientia illius tyranni, 
qui est in possessione vi aut clam, non inducit jus prae- 
scribendi illius jurisdictionis," because, as Bartolus has 
explained, if "aliquis possidet vi aut clam vel precario, 
contra eum non possumus praescribere, quia nullum 
jus habet in re, et ejus scientia non constituit me in 
quasi possessione: merito non praescribo." Therefore 
the Civitates cannot prescribe Merum et Mixtum Im- 
perium during a vacancy of the Empire. "Et ideo 
etiam videtur quod civitates quae usae sunt mero et 
mixto imperio, vacante Imperio, non praescribunt juris- 
dictionem, nee sunt possessione nee fuerunt: quia pos- 
sessio illius jurisdictionis non est aliud quam patientia 
et scientia Principis, contra quern praescribitur. Sed 
ubi non est scientia, non dicitur patientia, merito non 
dicitur quasi possessio. Ista dico inducendo in argu- 
mentum, non determinando." 

Although Bartolus says here that he is merely 
adducing this conclusion as an argument, presumably 
to prove what he has maintained in the case of the 
tyrant, he points to the same conclusion elsewhere. In 
one case 2 it almost leads him to say that no city in 
Italy has prescribed Merum et Mixtum Imperium. 
After saying that "quasi possessionem servitutis non 
possum habere nisi te sciente 3 ," he continues: "Et ideo 



1 Comment, on Codex, Part i. (C. in. 34. 1), p. 365, §§ 6-10. 

2 Comment, on Big. Nov. Part i. (D. xxxix. 3. 1, § Denique ait), 
p. 126, 

3 "...Quasi possessionem servitutis non possum habere nisi te 
sciente, quia quasi possessio servitutis non est, nisi domini patientia... 



II] THE EMPIRE AND THE CIV1TATES 141 

forte dicerem quod in Italia nulla civitas est, quae 
praescripserit merum vel mixtum imperium : quia in 
incorporalibus requiritur quasi possessio, sciente ad- 
versario. Sed Imperator jam est longum tempus quod 
non fuit 1 ." He goes on to ask whether in such circum- 
stances the " scientia Papae " is sufficient, but does 
not answer the question — " cogitabitis." Nor does he 
answer whether " in marchia, vel duchia sufficitne 
scientia ducis vel marchionis, ad praescribendum merum 
vel mixtum imperium. Cogitabitis. Nam Cynus...ubi 
tractat materiam meri vel mixti imperii nihil de hoc 
dicit : nee etiam Gulielmus." We may supplement 
this by another passage from the same Commentary on 
the Digestum Novum^. Bartolus is discussing whether 

et ideo est necesse quod dominus sciat. Sed possessionem tui fundi 
possum habere, te ignorante." 

1 Presumably this must have been written or spoken before the 
conclusion of the schism between Lewis of Bavaria and Charles of 
Bohemia. Bartolus would not of course have acknowledged Lewis, 
whom the Church had excommunicated, though we noticed his 
significant silence thereon. Otherwise he must mean that it is a 
long time since there has been an Emperor in Italy who could have 
"scientia." The first interpretation seems more obvious, and is con- 
firmed by the mention of the ' ' imperium schismaticum ' ' in the next 
passage to be quoted. 

2 Comment, on Dig. Nov. Part i. (D. xli. 3. 5), p. 295, §§ 22-6. 
The whole passage is worth quoting, if only for the very interesting 
reference to the great plague of 1348: "Quaero an ista usucapio vel 
praescriptio aliquo casu dormiat. Certe de praescriptione dormienti 
non habemus bene expressum de jure civili, nisi in praescriptione tri- 
ginta annorum...tamen de jure canonico videtur quod talis praescriptio 
dormiat tempore hostilitatis et exercitus, si tantus esset exercitus, 
quod jura in civitate non reddantur.... Verum tamen Innocent, dicit 
quod illud est verum etiam de jure civili ; nihil tamen allegat. Quod 
potest esse verum.... Habemus hodie casum expressum in ilia con- 
stitutione extravaganti Federici Imperatoris, de pace Constantiae, 
§ Possessiones....Idem forte dicendum esset ex eadem equitate, quod 



142 THE EMPIRE AND THE CIVITATES [CH. 

"usucapip vel praescriptio aliquo casu dormiat." He 
finds various cases in which it does — "et ideo pos- 
semus forte dicere, quod vacante Imperio non currit 
(i.e. prescription) contra Imperium, licet Ecclesia in 
administratione succedat....Et sic civitates non prae- 
scripserunt mixtum et merum imperium. Item non 
currit praescriptio tempore schismatis...quod est argu- 
mentum pro Imperio schismatico, quod contra ipsum non 
currat praescriptio. Praedicta omnia quae dixi respiciunt 
praescriptionem incoeptam. Quae autem impediant 
praescriptionem inchoari, hoc non examino." 

We may say, then, that Bartolus, with a little 
hesitation only as regards prescription, fully recognises 
the exercise by the Civitates of Merum et Mixtum 
Imperium. It was now necessary to go one step fur- 
ther. Merum et Mixtum Imperium is a right of the 
" praeses provinciae " and the " majores judices " — sena- 
tors, praetors and praetorian prefects, "qui aequiparantur 
regibus, qui sunt hodie per mundum 1 ." Therefore the 
Civitas, which actually exercises this right, must be 
considered a Provincia, its " defensores " must become 
"majores judices 2 ." In the Commentary on the Tres 

tempore mortalitatis instantis de anno Domini 1348, prout scitis, erat 
tanta pestilentia, quod jura non reddebantur in civitatibus, et morie- 
bantur infmiti homines, quod tempore illo usucapio dormiebat...et 
fuit ilia hostilitas Dei fortior quam hostilitas hominum. Item reperio 
quod dormit praescriptio contra Ecclesiam vacantem...et licet Ecclesia 
habeat oeconomum, tamen vacare dicitur, ut hie. Et ideo possemus 
forte dicere, etc." — as above. 

1 Comment, on Big. Vet. Part i. (D. i. 1. 9), p. 28, § 8. He refers 
here to D. i. 11. 1: "ut plene solet dici" — but has nothing on this 
topic in his own commentary on that law. 

2 Vide Comment, on Codex, Tres libri (C. x. 8. 1), p. 17, § 4: 
"Rectores civitatum habent hodie vim ma jorum judicum." Vide 



II] THE EMPIRE AND THE CIVITATES 143 

libri 1 , we have a discussion on the nature of a Civitas. 
"De jure antiquo," says Bartolus, a distinction was made 
between " maximae," " magnae " and " parvae civitates." 
" Maximae civitates " were cities having other cities, 
exercising Merum Imperium, under them; they were 
" civitates metropolitanae." " Magnae civitates " were 
those cities under them, which exercised Merum Im- 
perium. "Parvae civitates" enjoyed only Jurisdictio 
— " solam jurisdictionem, quae datur defensoribus civi- 
tatum." All these Civitates, which " suberant uni 
praesidi aut uni metropolitano," formed a province. 
But nowadays, Bartolus adds, "quaelibet civitas, habens 
distinctum territorium, quae superiorem non recognoscit, 
potest dici provincia, ut notat glossa 2 ." 

Thus we arrive, by a circuitous route, at the equality 
of the Provincia and Civitas, from which the Aristotelian 
started as almost axiomatic. But it still remained for 

also Comment, on Constit. Qui Sint Eebelles (ad verb. Lombardiae) , 
p. 286, § 8: "Quandoque sit appellatio provinciae eo respectu quod 
sit sub una jurisdictione ; et tunc contingit quod quaelibet civitas 
habeat separatam jurisdictionem, nee est unus praeses cui subest, 
quaelibet civitas habetur pro provincia." Cf. also Comment, on Codex, 
Part ii. (C. vii. 33. 12), p. 167: "Nota glossam super verbo 'id est in 
provincia ' : in provinciis vero quae adhuc reguntur hodie per praesidem, 
habet locum haec lex. In locis vero, in quibus civitas habet sua 
regimina, habet locum quod dicit hie notabilis glossa, quam vide." 

1 Comment, on Codex, Tres libri (C. xi. 21. 1), p. 83, §§ 1-5. 

2 Cf. Comment, on Constit. Qui Sint Eebelles (ad verb. Lombardiae), 
p. 286, §7, where the distinction is between "maximae," "majores" 
and "minores civitates." There is a difficulty in the passage above 
in explaining why the "magnae civitates," which were under the 
"maxima civitas" or "metropolis," and therefore themselves were 
"de jure antiquo" not provinciae, should have enjoyed Merum Im- 
perium which "regularly" the Civitas does not enjoy. In this 
passage however only the ' ' maximae civitates ' ' have Merum et 
Mixtum Imperium ; the "majores civitates" only Mixtum Imperium; 
the "minores" Jurisdictio Simplex. 



144 THE EMPIEE AND THE CIV1TATES [CH. 

the lawyer to go one step further and to raise his 
Civitas to the level of the Empire itself: that step 
we have yet to consider. But before we pass on, 
let us sum up the thought of Bartolus on the very 
important topic with which we have been occupied, 
and then briefly touch on the fourth point of inquiry, 
which we proposed to consider, namely the right 
of the Civitas to legislate. We may sum up the 
foregoing pages thus. The right to exercise Merum et 
Mixtum Imperium is recognised. This is done in two 
ways. Either the city, with its "distinct territory," 
is considered a Provincia, in which case its officials 
are "majores judices" and rightly exercise Merum et 
Mixtum Imperium; or the right depends on concession 
— for example, the cities which were a party to the peace 
of Constance enjoy the right by that peace. Failing 
concession, prescription must be pleaded, which, except 
during the vacancy of the Empire, seems valid. Finally, 
in some cases the exercise of Merum et Mixtum Im- 
perium, although mere usurpation, is recognised. This 
is all typical of the methods of Bartolus. He starts from 
the fact that the cities do exercise Merum et Mixtum 
Imperium — and then proceeds to find what right he 
can to account for the fact. If he fails, he finally 
returns to the fact ; acknowledges that it is mere usur- 
pation — but allows it. 

(4) The first of the six grades of Merum Imperium 
is the "potestas condere legem," and this is said to 
belong only to the Princeps and Senate 1 . But we have 
also seen that, when Bartolus came to discuss the 
legislative right of the Senate and of the Populus 
1 Vide the diagram in Appendix C, below. 



II] THE EMPIRE AND THE CIVITATES 145 

Romanus, he decided that that right no longer existed, 
though he seemed not disinclined to allow a universal 
validity to the customs of the Populus Romanus. We 
remarked, when we were considering this topic, that we 
ought not to dismiss this discussion as purely academic. 
Twice at least the question had entered into the actual 
facts of medieval history. On the other hand, we need 
not hesitate to say that the whole question was but 
part of an antiquated political theory, which allowed 
the rights of sovereignty "properly" only to Rome 
itself. That theory Bartolus has given up. The im- 
portant thing now was, not to decide whether the 
Senate or Populus Romanus had, or had not, any 
longer the right to make laws of a universal validity, 
but to investigate the problems presented by the local 
and varying customs and statutes of the Italian cities, 
their validity and their relation to the "jus commune" 
and to each other. 

These communal customs and statutes date in 
great number from the thirteenth century, and were 
the natural outcome of communal prosperity and in- 
dependence 1 . The customs were the " legal rules 
deduced from the practical life of the people, which the 
legislators had not done more than collect from the 
mouth of the people and reduce to writing 2 ." The 
statutes, on the other hand, were legislative declarations, 
sometimes directed to modify the popular customs, but 
more often, says Pertile, to regulate the political con- 
ditions of the commune 3 ; though originally they had 

1 Vide Pertile, Storia del diritto italiano, vol. n. Part 2, pp. 118- 
52. 

2 Ibid. p. 120. 3 Ibid. p. 121. 

w. 10 



146 THE EMPIRE AND THE CIVITATES [CH. 

been nothing more than the oath taken by the communal 
officers, directions as to their duties and the rules which 
they were to follow 1 . Usually these two sources of 
municipal law — customs and statutes — were, at the 
time of codification, united into one body ; but this 
practice was not universal 2 . 

The Glossators had, not perhaps without some 
difficulty, found a place for these statutes and customs 
within their political theories 3 . The right to legislate 
could be based on texts in the Law Books which de- 
fine "jus civile," in contrast to "jus gentium," as "jus 
quod quisque populus ipse sibi constituit 4 ." Statutes 
and customs are both brought under the rubric of "jus 
municipale," the one being law " redactum in scriptis " 
and made by express consent, the other unwritten and 
made by tacit consent 5 . The right to legislate, so far 
as concerns its own internal arrangements, is recognised 
as belonging to any "collegium approbatum 6 " — and in 

1 Pertile, op. cit. p. 135. Thus, originally, they began with the 
word "juro"; in the thirteenth century the change to "statuimus" 
marks the change in their character from an oath taken by its officers 
to the legislative enactment of the commune itself. 

2 Ibid. pp. 119-20. 

3 Vide Gierke, Deutsche Genossenschaftsrecht, vol. in. pp. 215-7. 

4 Ibid. p. 215, note 85. Gierke quotes from the Glossa Magna, 
which on the words "jus civile" says — "Statuta terrarum, quae jura 
municipalia dicuntur." 

5 Vide the Comment, on Dig. Nov. Part i. (D. xxxix. 4. 16), p. 159, 
§ 20, though we shall see (below, p. 399) that the Eepetitio is probably 
by Signorolus de Homodeis, not by Bartolus: a statute is "jus quod 
proprium unusquisque populus sibi constituit et in scriptis redigit... 
Per hoc separatur a consuetudine. Nam jus municipale est duplex, 
redactum in scriptis et non redactum." 

6 Vide Bartolus, Comment, on Dig. Vet. Part i. (D. i. 1. 9), p. 27, 
§ 6 : " Quaero utrum collegia possint facere statuta : videtur dicendum, 
quod collegia licita et approbata in his in quibus habent jurisdictionem, 



II] THE EMPIRE AND THE CIVITATES 147 

fact the statutes of many corporations, other than the 
cities, have come down to us 1 . Hence, if it is said that 
only the Emperor can make law, that refers to " general 
laws." Laws and Senatusconsulta — by "laws" meaning 
here Imperial laws — cannot suffice, says Bartolus, for 
all purposes — " quod nota propter statuta quae quotidie 
fiunt in civitate ista 2 . 

The law, in fact, on which Bartolus commented, 
was, we must always remember, in no sense the pure 
Boman Law of Justinian's Law Books. There is much 
besides — the Canon Law, the post-Justinian additions 
to the Corpus Juris, such as the constitutions of the 
two Fredericks and the two books De Feudis, and 
lastly the statutes and customs of the Italian cities. 
These last differ from the Corpus Juris, both in its 
Justinian and post-Justinian contents, and from the 
Canon Law, in that they are not authoritative, because 
not of general application, not authoritative, that is 
to say, universally. But a random glance at any 
page of Bartolus would show the large part played 
by both statute and custom, not merely as illustrations, 
but in the actual elaboration of a law which, while 
Roman in basis, was to be practically effectual for the 
Italy of his day. 

The right to legislate was not denied ; what was 
disputable was the limits within which the legislation 
of the Civitas was valid. This is a large question and 

et quo ad ea quae ad ipsos collegiatos pertinent, possunt facere 
statuta." So Comment, on Codex, Part i. (C. iv. 18. 2), p. 405: 
" Negotiatores possunt facere statuta inter se." 

1 Vide Pertile, op. cit. vol. n. Part 2, pp. 142-7. 

2 Comment, on Authentic. Collatio vi. (Quibus modis naturales 
efficiuntur legitimi, § Recte), p. 79, § 1. 

10—2 



148 THE EMPIRE AND THE CIVITATES [CH. 

one that only in part comes within the scope of the 
history of political thought. But to make our present 
survey as complete as possible, we ought to consider 
this topic in one or two of its more important aspects. 

In the first place the scope of the statutes is merely 
local. " Civitas non potest facere statuta de his qui 
suae jurisdictionis non sunt 1 ." The statute is "quaedam 
conventio civium 2 ," and will ordinarily bind only those 
citizens. In certain cases it will bind foreigners residing 
within the territory of the legislating Civitas. With 
this, however, we have not to deal. The whole question 
of the " collisio statutorum " leads us away from politics 
to the early history of private International Law. For 
our purpose we may say that the statute is a law of 
purely local validity, binding, in general, only the 
citizens whose law it is. But we may remark, before 
we proceed to another point more properly political, 
that probably on no topic has Bartolus received so much 
praise from modern authorities as for his systematic 
treatment of the "collisio statutorum 3 ." 

1 Comment, on Codex, Part i. (C. in. 13. 2), p. 326. 

2 Comment, on Infort. Part i. (D. xxviii. 1. 3), p. 257, § 4. 

3 Vide esp. Meili, Bartolus als Haupt der Ersten Schule des 
Intemationalen Strafrechts. Vide p. 5: "Bartolus (a Saxoferrato) 
ist derjenige italienische Jurist der mittelalterlicher Jurisprudenz, 
welche die Materie der collisio statutorum originell, exakt und mit 
Geist behandelt hat, und man darf ohne Ubertreibung sagen, dass 
er ein kleines System des Intemationalen Privat- und Strafrechts 
aufgestelit hat." Cf. p. 9. "Was die italienische Theorie der 
strafrechtlichen collisio statutorum und besonders auch die von 
Bartolus in meinen Augen ganz besonders charakterisiert, ist ihre 
Grosszugigkeit, die nun so bemerkenswerter erscheint, als die juris- 
tischen Vorgange sich im Kleinen abspielten. Die Theorie ist aber 
auch geradezu umfassend; denn sie beleuchtet die meisten Fragen, 
welche auch die Neuzeit beschaftigen." Also noteworthy is it that 



II] THE EMPIRE AND THE CIV1TATES 149 

On the other hand the collision of the statutes with 
the "jus commune" concerns us more closely, and we 
may see what rules Bartolus lays down for such cases 
of conflict 1 . 

We have seen above that statutes, no less than 
laws, are subject to the higher laws — the "jus divinum," 
"jus naturale" and "jus gentium." Further statutes, 
which as regards " spiritualia " are contrary to the 
Canons, are of course invalid ; and we may note 
that statutes contrary to the liberties of the Church 

Dr Meili denies that Bartolus is the real author of the division of 
statutes into Keal, Personal and Mixed, which he refers to Argentraeus 
(ob. 1590). . Vide pp. 6-8 and p. 48. "Das sehr zweifelhafte 
Verdienst dieser Klassification kommt einzig und allein dem fran- 
zosischen Juristen Argentraeus zu" (p. 7). Sir W. Eattigan, in his 
article on Bartolus (No. 3 "Great Jurists of the World" in the 
Journal of the Society of Comparative Legislation, 1903), also gives 
great praise to Bartolus on this topic. Vide pp. 236-8. 

1 Numerous examples of such conflict are given by Bartolus in 
the course of his Commentaries. We may give some examples. 
Comment, on Infort. Part i. (D. xxvi. 10. 3, § Tutores), p. 194: " Et 
sic nota quod de jure communi non debet quis poni in carcere pro 
debito, nisi quando non habet bona sumcientia pro debito, quando 
satis placet.... Statuta et consuetudines Tusciae statuerunt aliter." 
Comment, on Codex, Part n. (C. viii. 14. 1), p. 274: "...licet Veneti 
servent contrarium." Comment, on Dig. Nov. Part i. (D. xliii. 8. 2, 
§ Tractatum), p. 433: "Nota quod isti pontes qui fiunt per viam de 
jure non possunt fieri : tamen in Italia in quibusdam terris est statutum 
quod possint fieri et in quibusdam est consuetudo." Comment, on 
Big. Nov. Part n. (D. xlviii. 8. 1, § Divus), p. 490: "...Domini, 
quidquid ipsi dicant, Veritas est ipsa, per Italiam maleficia puniuntur 
secundum statuta, non secundum leges." Comment, on Codex, Part n. 
(C. vi. 38. 2), p. 110, § 2: "Tamen in civitate ista est ista consuetudo 
in vinea: quando vendita vinea, cedunt ea quae sunt instrumenta 
vineae, quod de jure communi non est." Cf. for some other interest- 
ing examples, Comment, on Codex, Part i. (C. n. 59. 2), p. 95, § 1; 
Comment, on Infort. Part n. (D. xxxiv. 2. 1, § Cui certum), 
p. 268. 



150 THE EMPIRE AND THE CIVITATES [CH. 

are similarly invalid 1 , even where Imperial laws seem 
valid 2 . 

Now let us consider the general rules to be observed 
between the conflicting "jura municipalia" and the "jus 
commune." 

In his commentary on the law Omnes Populi, 
Bartolus asks 3 whether "super his, quae disposita vel 

1 Vide Comment, on Codex, Part i. (C. i. 2. 12, Auth. Cassa et 
Irrita), p. 42, §§ 3 and 5. Such, statutes are those "contra privilegia 
concessa ecclesiis seu ecclesiasticis personis per Principem seu Papam." 
Cf. Comment, on Codex, Part i. (C. n. 3. 30), p. 164, § 6, and Consilium 
i. 187, p. 117. However in Comment, on Codex, Part i. (C. 1. 1. 1), p. 13, 
§29, Bartolus distinguishes as follows: "Aut statuta sunt directo 
super ecclesiis vel rebus ecclesiasticis : et non valent, quia non pertinent 
ad jurisdictionem concedentis....Aut statuta sunt facta simpliciter : et 
tunc aut redundant contra ea quae sunt concessa ecclesiis vel clericis 
in privilegium et non valent... aut contra ea quae competunt ecclesiis 
vel clericis, non in privilegium, sed ut cuilibet : et tunc ligant clericos 
et sunt servanda in foro episcopali, dum tamen sint honesta." 

2 Vide Comment, on Codex, Tres libri (C. x. 19. 8), p. 31: "Lex 
Imperialis, quae prohibet emere, comprehendit etiam Ecclesiam.... 
Statutum vero civitatis hoc non posset, quia esset contra libertatem 
ecclesiarum." On some other topics too the field of legislation open 
to the Statutes seems restricted by a definite prohibition as ' ' ultra 
vires" — thus vide Comment, on Codex, Part i. (C. i. 2. 17), p. 67, § 19: 
"Licet lex Imperialis et communis possit ad pendentes lites extendi," 
yet "statuta" and " ref ormationes civitatum" not. 

3 Vide Comment, on Dig. Vet. Part i. (D. i. 1. 9), p. 33, § 26: 
" Quandoque lex resistit statuto, prohibendo ne fiat, et tunc non 
valet statutum. Nam ideo valet statutum, quia Princeps permisit 
...secus ergo si prohibeat. . . . Quandoque lex non resistit statuto: et 
tunc quaedam glossa videtur dare talem doctrinam : aut contra talem 
legem aut jus potest venire per pactum, et poterit per statutum. Aut 
non per pactum, et tunc nee per statutum.... Aliae glossae videntur 
dicere contrarium, quod talis aequiparatio pacti ad* statutum non sit 
bonum....Pro quibus glossis concordandis, die quod quandoque pro- 
hibitum est fieri per pactum, quia contra bonos mores, et tunc procedit 
argumentum : quia tunc nee per statutum. . . .Ratio, quia lex et statutum 
debent esse sancta et honesta.... Ergo si continent aliquid inhonestum, 
non valent. Aut est prohibitum fieri per pactum alia ratione, puta 



II] THE EMPIRE AND THE CIVITATES 151 

prohibita sunt a jure civili communi, possint fieri statuta 
aliter statuendo ? " Bartolus answers that a statute can- 
not contradict the "jus commune" by ordaining that 
which the "jus commune" forbids; but it can ordain 
that which is not expressly forbidden, provided that it 
accords with " boni mores " and public utility, and is 
within the limits of the jurisdiction which the people 
can exercise. 

Similarly with custom. Either, says Bartolus 1 , 
a custom is contrary to, or goes beyond, law. If it 
goes beyond law, "constat earn debere servari." If, 
however, it is contrary to law, we must distinguish one 
case from another. Custom contrary to Divine or 
Natural Law, or to the Law of Nations, is not to be 
observed. If it is contrary to Civil Law — that is to 

publicae utilitatis, vel alterius juris subtilitatis...tunc tale argumentum 
procedit. Ita loquuntur aliae glossae....Et istis casibus non dicit 
statutum contra legem, licet disponat aliter quam lex....Praedicta vera, 
quando fit statutum de his quae ad populi jurisdictionem spectant. 
Si vero fiererit in causis majoribus, quae sibi solus Princeps reservavit, 
ut in venia aetatis concedenda...et in similibus, tunc statutum non 
valet, quia non est ad populi jurisdictionem." 

i Vide Comment, on Codex, Part n. (C. vm. 53. 2), p. 333, § 45: 
' ' Concludo quod aut consuetudo est contra legem aut praeter legem. In 
secundo casu constat earn debere servari.... Prim o casu consuetudo est 
contra jus naturale, et non debet servari.... Aut contra legem divinam, 
et idem facit....Aut contra jus gentium, et idem.... Aut est contra jus 
civile. Et tunc aut est expresse reprobata per legem, et non valet.... 
Aut non, et tunc aut est inducta per consensum erroneum contra legem, 
et tunc non valet... aut ex certa scientia; et tunc aut precedit legem; 
et tunc quidam distinguunt quod aut apparet ex tenore dictae legis ejus 
latorem sensisse vel scivisse consuetudinem localem, et tollit ipsam; 
aut non, et tunc non, sed ilia lex succumbit....Ego autem sic dico... 
quod aut dicta consuetudo est contra legem et lex sequens contraria 
illi consuetudini tollit earn... aut praeter legem, et tunc non; sed lex 
succumbit illi. Aut consuetudo est generalis, et vincit legem genera- 
lem...aut est specialis et localis, et vincit earn speeialiter in eo loco." 



152 THE EMPIRE AND THE CIVITATES [CH. 

say, a general custom contrary to the "jus commune" 
and a particular custom contrary to the "jus civile 
particulare," i.e. a statute — then, if it is expressly dis- 
approved by the law, it is not to be kept. If it 
is not expressly disapproved, then we must distinguish 
again whether it is "inducta per consensum erro- 
neum contra legem," in which case it is invalid; or 
whether it is induced "ex certa scientia," in which 
case, if the custom precedes the law, Bartolus, re- 
jecting the opinion of some, who distinguish between 
cases where the legislator knew of the existence of the 
custom or did not, maintains that its validity depends 
again on whether it is " contra " or " praeter legem." 
If " contra," the law, coming after the custom, revokes 
the custom; if "praeter," the law is swallowed up in 
the custom. The general rule therefore, as regards both 
custom and statute, is that they are both essentially 
inferior to the "jus commune"; but just as the "jus 
commune " or a statute can amplify the higher Laws 
of God, Nature or Nations, so custom and statute can 
amplify, not contradict, the "jus commune 1 ." 

In this way the field of legislation left open to 
statute and custom was very large 2 . Bartolus has 

1 Cf. in this connection the question of the interpretation of 
statutes. Vide especially Comment, on Dig. Vet. Part i. (D. i. 1. 9), 
pp. 41-6, §§ 53-65. It was on this question that Raynerius of Forli 
combated both Bartolus and Signorolus deHomodeis (vide below, p. 399). 

2 We may note here that, where in criminal matters a statute 
imposes a different penalty from the Jus Commune, the new penalty 
of the statute does not revoke the old penalty of the Jus Commune. 
Vide Comment, on Codex, Part n. (C. ix. 19. 3), p. 349: "Et per hoc 
dico quod si statutum pro homicidio imponat poenam pecuniariam, 
non propterea tollitur poena legis Corneliae. Tamen," he adds, "si 
q'uis condemnetur vigore statuti, quod imponit poenam pecuniariam, 



II] THE EMPIRE AND THE CIVITATES 153 

said that a statute can ordain that which is not ex- 
pressly forbidden try the "jus commune," provided that 
it is "de his quae ad populi jurisdictionem spectant." 
Certain topics the Emperor has reserved to himself — 
various "causae majores." We must consider this 
restriction more closely. 

Bartolus, we have seen, allows the right to make 
statutes to any approved and licit corporation "in his 
in quibus habent jurisdictionem, et quo ad ea quae ad 
ipsos collegiatos pertinent." Now as regards the cities, 
we must remember that they vary in the extent of 
jurisdiction which they exercise — from the Castrum 
or Villa, which has no jurisdiction, and the ordinary 
Civitas with a limited jurisdiction, "de jure communi," 
to the Civitas, who owns no superior and has " merum 
et mixtum imperium." With regard to the right 
of these three classes of cities to legislate Bartolus 
makes an important distinction 1 . The Civitas with no 
jurisdiction can make a statute "pertinens ad adminis- 
trationem rerum ipsius populi" — provided the statute 
does not fall under the heading of " ambitiosa decreta ' 
— on its own authority and without the intervention of 
the superior ; but a statute " pertinens ad causarum 
decisionem " it can only make by authority of the 
superior — otherwise the statute is invalid. Similarly 
the Civitas with a limited jurisdiction can only make 
statutes "in his in quibus habent administrationem, 
seu jurisdictionem... in aliis non sine superioris aucto- 
ritate." It is thus only the Civitas, which has " all 

tollitur condemnatio, quae resultat ex lege, quia senatus voluit ne 
quis ob idem crimen in duabus legibus fiat reus." 

1 Vide Comment, on Dig. Vet. Part i. (D. i. 1. 9), pp. 27-9, §§ 3-14. 



154 THE EMPIRE AND THE CIVITATES [CH. 

jurisdiction " and owns no superior — the Civitas that is 
a "populus liber" — which can make statutes "prout 
sibi placet 1 ." Of these it may be said that they have 
the same power " in his quae sunt ex forma statuti," as 
the Princeps " in his quae sunt de jure communi 2 ." 

Now from this it was but a small step to say that 
such a Civitas was, within its own boundaries, the 
Princeps himself. We have already referred to this 
final step in the process of raising up the Civitas from 
its original dependence to an independent position, as 
a sovereign State. We have followed that process step 
by step, and if the final step is not a large one, it is 
none the less one of the greatest importance. We 
must realise that it is not a solution offered once or 
twice by Bartolus, but one consistently and systemati- 
cally adopted. To show this, and to illustrate this step 

1 Cf. Comment, on Codex, Tres libri (C. x. 63. 5), p. 64: " ...Qui- 
libet populus potest sibi facere statutum....Solutio: dicit Gul. quod 
illud est verum in his quae privatam utilitatem respiciunt. In his 
vero quae respiciunt publicam utilitatem principaliter, non possunt. 
Sed ego dieo aliter in L. Omnes Populi (D. i. 1. 9). Nam quidam est 
populus liber, qui habet omnem jurisdictionem, et tunc potest facere 
legem et statutum prout sibi placet... ubi ponitur exemplum in populo 
Romano. Quidam sunt populi qui non habent jurisdictionem de jure 
communi, ut civitates quae non habent merum imperium; item 
provincia tota, quae licet habeat merum imperium, tamen a praeside 
appellatur ad superiorem; et tunc eorum statuta non valent, nisi 
confirmentur a superioribus, ut hie. Et ita fit in istis civitatibus 
marchiae et ducatus, nam non admittuntur eorum statuta, nisi appro- 
bata per superiorem." 

2 Comment, on Codex, Part n. (C. ix. 51. 13), p. 356, § 12: "Si 
infamia esset irrogata de jure communi, fateor quod statutum non 
possit restituere...Sed si infamia esset irrogata ex forma statuti, non 
de jure communi, tunc puto quod per statuta possit fama restitui. 
Quam enim potestatem habet Princeps in his quae sunt de jure 
communi, eandem videtur habere populus in his quae sunt ex forma 
statuti." 



Il] THE EMPIRE AND THE CIVITATES 155 

generally, we cannot do better than to collect a number 
of examples ; these we may most conveniently arrange 
under the different divisions of the commentaries from 
which they are taken. 

(1) From the Commentary on the Digest : — 

Dig. Vet Part I. (D. n. 1. 1) : Bartolus is discussing 
the " aequiparatio " of " jurisdictio " to "dominium." 
" Et ista aequiparatio de jurisdictione ad dominium 
probatur sic: Princeps habet omnem jurisdictionem... 
et ex hoc dicitur dominus to this mundi...sicut quilibet 
judex dicitur princeps civitatis, vel territorii, cui praeest. 
...Et recte potest dici dominus totius illius territorii 
universaliter considerati 1 ." 

Dig. Vet. Part I. (D. ill. 1. 1, § De Qua Re) : " Nota 
quod ad famam solus Princeps et senatus potest re- 
stituere et eodem modo Papa et collegium cardinalium. 
...Sed quaero an populus per statutum possit quern 
restituere famae. Hie videtur casus quod non. Quod 
est verum in infamia, quae irrogatur ex forma alicujus 
statuti, quae per aliud statutum contrarium posset 
tolli....Idem de aliis regibus et principibus qui recog- 
noscunt Imperatorem in dominum. Sed si esset rex, 
princeps vel populus, qui Imperatorem in dominum 
non recognosceret, tunc quo ad seipsos restitutio famae 
valeret, quia talis appellatur populus liber... et apud 
eosmet dicitur esse imperium sui ipsius 2 ." 

Dig. Vet. Part I. (D. iv. 4. 3) : After saying that 
V per statuta civitatum non possit concedi minoribus 
administratio bonorum suorum, quia hoc Princeps re- 
servavit sibi," Bartolus continues — "Civitates tamen 
quae Principem non recognoscunt in dominum, et sic 
i p. 160, §§ 15-6. 2 p. 322. 



156 THE EMPIRE AND THE CIVITATES [CH. 

earum populus liber est...possent hoc forte statuere ; 
quia ipsamet civitas sibi princeps est 1 ." 

Dig. Nov. Part I. (D. XLII. 1.57): " Sed quid si una 
civitas vellet dare jurisdictionem uni pupillo vel infanti, 
ut earn exerceat per curatorem vel tutorem ? Re- 
spondeo: faciat de hoc primo statutum....Si enim 
civitas non posset dispensare, ilia lex non habet dubium. 
Quod sine dubio obtinet in civitatibus, quae non recog- 
noscunt dominum in temporalibus ; quia tunc populus 
liber est et utitur omni jurisdictione Imperiali 2 ." 

Dig. Nov. Part I. (D. XLIII. 6. 2) : " Istae duae leges 
sunt contra homines hujus civitatis, qui habent domos 
suos supra muros civitatis, quod non licet sine permissione 
Principis, ut hie videtis. Tamen ipsi habent permis- 
sionem a populo et communi hujus civitatis, et dicunt 
quod est populus nemini subditus : ideo hie populus est 
princeps in hac civitate, ideo potest permittere 3 ." 

Dig. Nov. Part II. (D. xlviii. 1. 7) : " Quaero quis 
possit super infamia dispensare ? Respondeo, textus 
dicit, quod solus Princeps vel senatus....Idem dicimus 
de Papa in terris Ecclesiae : quia potest cum infami- 
bus dispensare. Idem in collegio cardinalium, vacante 
pastore: secus in regibus et principibus.... Quaero 
utrum civitas una possit infamiam irrogare, vel super 
infamia dispensare ? Videtur quod non : quia civitas 
una non potest facere statutum super his, quae non 
sunt suae jurisdictionis....Sed causa infamiae non est 
de jurisdictione civitatis, cum sit reservata Principi.... 
Solutio : dicerem cum quaelibet civitas Italiae hodie, 
et praecipue in Tuscia, dominum non recognoscat, in se 
ipsa habet liberum populum, et habet merum imperium 

1 p. 430. • 2 p. 378, §14.- 3 p. 431. 



II] THE EMPIEE AND THE CIVITATES 157 

in se ipsa, et tantam potestatem habet in populo, 
qaantam Imperator in universo 1 ." 

Dig. Nov. Part II. (D. XLVIII. 19. 4): "Nota hunc 
textum, quod relegato seu misso in exilium non potest 
dare judex licentiam veniendi, vel quod revertatur : sed 
solus Princeps potest, et non alius. Et quod hie dicit, 
ex aliqua causa, intelligatis quia causa justa est voluntas 
Principis. Et idem intelligo in istis civitatibus Italiae, 
quia ipsae sunt principes sibi ipsis ; quia possunt exuli 
dare licentiam revertendi 2 ." 

Dig. Nov. Part II. (D. xlix. L 1, § Si quis in appel- 
latione) : " Pone, quod est civitas, quae non recognoscit 
superiorem, et quae eligit ipsa sibi rectorem, nee habet 
alium officialem : quis erit judex appellationis ? Re- 
spondeo : ipse populus, seu ordo, qui ipsum officialem 
facit : quia solus reperitur superior ipsi populo, et sibi 
princeps est....Et hoc colligitur ex lege 2 — 'Exactis 
deinde regibus consules constituti sunt duo ' — supra, De 
orig. juris (D. I. 2. 2), ubi populus Eomanus liber faciebat 
officiales, et ab eis erat jus appellandi, nisi expresse 
esset inhibitum 3 ." 

1 p. 423, §§ 13-14. 

2 p. 552, § 4. Bartolus goes on to extend the power of granting 
"licentiam veniendi" — "Idem puto de omnibus civitatibus, quae 
habent licentiam condendi statuta in istis negotiis magnis. Nam 
ipsae possunt facere leges, ut exules revertantur: tunc habebunt 
licentiam revertendi auctoritate legis et auctoritate Principis, qui sibi 
(i.e. the civitatibus) concessit, quod possint facere leges et statuta.... 
Item dico quod quilibet judex potest dare licentiam revertendi exuli 
ex causa justa, ut puta, si est accusatus de maleficiis, propter quod 
praesentia accusati requiritur." 

3 p. 580, § 10. In the next paragraph, he continues : " Quaero, in 
aliqua civitate est collegium, quod facit sibi rectorem, cui dat juris- 
dictionem....Quis erit proximus superior, ad quern appellabitur ? Ee- 
spondeo ille, qui est judex ipsius universitatis, ut rector civitatis... 



158 THE EMPIRE AND THE GIVITATES [CH. 

Dig. Nov. Part II. (D. L. 9. 4): "Quaero, posito quod 
decuriones ipsi non possint donare, ut dictum est : an 
populus totus possit donare ? Puto quod sic ; quod 
apparet, quia potest de donando legem facere...quod 
sine dubio procedit in illis civitatibus, quae de facto in 
temporalibus non recognoscunt superiorem, et sic ipsi in 
se habent imperium 1 ." 

(2) From the Commentary on the Code : — 

Codex, Tres libri (C. x. 46. 1) : " Sed quaero, cum 
decuriones non possunt concedere immunitatem, quis 
poterit concedere ? Dicit glossa quod Imperator, et 
idem puto quod consilium magnum et adunantia gene- 
ralise quae habet plenum imperium ; quia forte est 
civitas, quae non recognoscit superiorem 2 ." 

Codex, Tres libri (C. xi. 32. 3) : " Nota ex secunda 
parte, quod in utraque Roma requiritur auctoritas 
Imperialis in venditione. Et per hoc dico quod in 
civitatibus, quae in temporalibus non recognoscunt 
superiorem, ut est civitas Perusina, sic populus est liber 
...quod venditio rerum immobilium possit fieri auc- 
toritate ejus consilii, apud quod est omnis potestas. 
Illud enim vicem Imperatoris gerit in civitate ilia 3 ." 

We may also quote one or two other passages, in 
which we find the same conception of the "populus 
liber," although we do not have it directly stated that 
they are Imperator or Princeps to themselves. Thus in 

Praedicta vera, quando civitas propriam legem habebat, secundum 
quam aliud judicatur." 

1 p. 669, § 7. And vide more examples from the commentary on 
this same law, below, p. 184, n. 3. 

2 p. 54, § 2. He refers to the passage last quoted (i.e. on D. l. 
9. 4). 

p. 89, § 2. 



II] THE EMPIRE AND THE CIVITATES 159 

the Commentary on the Code 1 : " Si quis facit contra 
preceptum legis, peccat mortaliter....Qui non obedierit 
Principi morte morietur. Et alibi dicit Paulus (ad 
Romanos XIII) 'Omnis anima subdita sit Principi'... 
Cum ergo superior populus vel princeps hoc praecipiat, 
si quis facit contra legem, peccat mortaliter." Now 
though Bartolus does not say in so many words that 
this " superior populus " is " sibi princeps," yet it is 
bracketed by him with the Princeps, to disobey whom 
is, on S. Paul's authority, a mortal sin. 

Again — " Quaero hie primo, quis possit collectam 
imponere. Respondeo, aut imponitur propter neces- 
sitatem civitatis, et possunt ipsi civitates imponere.... 
Aut imponitur ob publicam utilitatem, et non potest 
imponi sine expressa licentia Principis....Unde si quae- 
dam civitas vellet imponere collectam, ut donaret 
Principi, non posset de jure, sed de facto sic. Praedicta 
vera sunt in civitate, quae recognoscit superiorem ; sed 
si essent civitates liberae, et non recognoscentes superi- 
orem, possent imponere quomodo sibi placeret 2 ." 

Again, on the first law of the fifth title of the Code, 
Book III — "Ne quis in sua causa judicet vel sibi jus 
dicat" — Bartolus says 3 : "Rubrica summat legem. Hoc 

1 Comment, on Codex, Part i. (C. n. 28. 1, Autkent. Sacramenta) , 
p. 265, § 15. 

2 Comment, on Codex, Tres libri (C. x. 62. 1), p. 61, § 24. Cf. a 
passage in the Comment, on Codex, Part n. (C. vr. 33. 3), p. 94: "Ad 
evidentiam primae partis (i.e. of this law) debes scire, quod sicut 
hodie Florentini et alii Italici, quando sunt guerrae, ipsi imponunt 
magnas gabellas, ita fecit divus Adrianus qui statuit, ut quandocunque 
haeres scriptus mitteretur in possessione, solveret vicesimam partem 
haereditatis fisco, quod idem est ac si diceret — Sol vat duodecim 
denarios pro libra." 

3 Comment, on Codex, Part i. (C. m. 5. 1), p. 315, § 1. 



160 THE EMPIRE AND THE CTVITATES [CH. 

intellige verum, nisi in judicious, qui non recognoscunt 
superiorem. Tunc enim ipsimet judicant causas suas. 
...Et ita videmus de facto in civitatibus quae non 
recognoscunt superiorem." And for a final example 
we may note how on the words of the Digest (D. xlh. 
1. 45) — "De amplianda vel minuenda poena damnatorum 
post sententiam dictam sine principali auctoritate nihil 
est statuendum" — Bartolus says 1 : "Et quod hie dicit, 
sine jussu principis, idem puto hodie in civitatibus 
quae non recognoscunt superiorem. Nam populus hujus 
civitatis potest minuere poenam." 

We have introduced this last — and we may call it 
crowning — step in the political theories of Bartolus, 
while considering the legislative power of the Civitas. 
As " sibi princeps " the Civitas will now be able to 
legislate by statute on all topics which the Emperor has 
reserved to himself. But this is only one of the effects 
of this step. In general it means that the Civitas is 
now an independent sovereign State. The theory of the 
Civilians had begun by seeing but one State, namely 
the Empire. Bartolus, we must always remember, has 
not yet given up the de jure lordship of the Emperor; 
but he has now recognised that where, whether de jure 
or de facto, there is an independent political body, 
that body must be recognised as sovereign and en- 
dowed, within its particular boundaries, with all the 
marks and privileges of the one universal Empire. 

But there is one important reservation to be made 
here, before we leave this topic. The Civitas is now 
"sibi princeps" and can legislate "prout sibi placet," so 

1 Comment, on Dig. Nov. Part i. (D. xlii. 1. 45, § De Amplianda), 
Bale ed. p. 373, § 1. 



ll] THE EMPIRE AND THE CIVITATES 161 

long as its legislation does not run counter to the 
higher laws of God, Nature and Nations, to the "jus 
commune," to the Canon Law, at least in spiritual 
matters, and to the liberties and privileges of the 
Church ; while we have seen that statutes can amplify 
these higher laws, though they cannot contradict them. 
But though, putting aside these reservations, the inde- 
pendent Civitas can legislate at will, its laws are still 
"statuta"; the limits, within which they are valid, 
are wider than in the case of cities without, or with 
a limited, jurisdiction, but the laws of all alike are 
nothing more than statutes, not what we should call 
sovereign law. Dr Gierke 1 has pointed out the great 
importance of the distinction between the statute 
"pertinens ad causarum decisionem" and the statute 
"pertinens ad administrationem rerum ipsius populi." 
But Bartolus himself does not carry through this 
distinction to a separation of the sovereign legislation 
of an independent Civitas from the legislation of 
a mere corporation. All Bartolus himself says is that 
the Civitas with full jurisdiction can make statutes of 
the first class "per se," while the Civitas without full 
jurisdiction can do so only by authority of the superior. 
The right to legislate is thus not the result of inde- 
pendence, not an act of sovereign power. The right to 
legislate belongs to all corporations — political and non- 
political alike ; the greater or less degree of independence 
enjoyed by the Civitas only widens the scope within 
which legislation is valid without the authority of a 
superior. 

We shall be concerned in later pages of this essay to 
1 Vide Deutsche Genossenschaftsrecht, vol. in. pp. 387-8. 

w. 11 



162 THE EMPIRE AND THE C1VITATES [CH. 

estimate more fully both the origin and the significance 
of this final step by which the Civitas becomes a State. 
So far we have seen the State come into existence; 
we have now to treat of the State as existing. It 
is still necessary, however, to make one preliminary 
inquiry. We have repeatedly remarked that the 
political thought of Bartolus is eminently practical, 
that his theories at once reflect and interpret the actual 
Italian conditions of his time. But it might well be 
asked whether his thought, however praiseworthy, has 
not after all been out of touch with these conditions. 
It may be said that, while the whole trend of his 
thought has so far been to free these Civitates from an 
Empire which was a shadow, in reality they were fast 
falling under the power of tyrants, indeed were for the 
most part already fallen. We must therefore see how 
Bartolus handles this subject of tyranny. 

It is certainly true that all northern and central 
Italy was fallen, or falling, beneath the power of 
tyrants; tyranny is as much the characteristic of the 
Italian communes in the fourteenth century, as the 
rise of the "popolo " and the struggles of the factions 
are characteristic of the thirteenth. The towns that 
remained free were a mere handful, and even in these 
the still violent strife of the factions threatened sooner 
or later to bring in the tyrant. Even Florence had had 
its first taste of tyranny under the Duke of Athens. 

Bartolus fully realises this. "Hodie Italia est tota 

plena tyrannis 1 ," he cries out ; and he joins his grief 

for the state of Rome itself, which, with the Popes at 

Avignon, was a nest of petty, and therefore all the more 

1 Tractatus de Regimine Civitatis, p. 421, § 29. 



II] THE EMPIRE AND THE C1VITATES 163 

noxious, tyrants, to that of all Italian literature from 
Dante to S. Catherine. "Est septimus modus regiminis," 
he says in his Tract, de Regimine Civitatis 1 , "qui est in 
civitate Romana, nunc pessimus" — the regimen of many 
tyrants, not one of whom is strong enough to prevail 
against the rest; so monstrous that Aristotle has no 
name for it; yet allowed by God, to show the frailty of 
mundane glory — "Civitas enim Romana, caput morum, 
caput politiarum, ad tantam monstrositatem circa sui 
regimen venit, quod verius dici potest quod non est 
regimen, nee regiminis formam habet 2 ." And "Deus 
scit quando supervenit Justus dominus 3 ." 

And so to face this terrible problem Bartolus 
composed a special treatise 4 . He adopts a definition 
of S. Gregory, " quae pro lege servanda est," by which 
"proprie tyrannus is dicitur, qui communi reipublicae 

1 Tractatus de Regimine Civitatis, p. 418, § 5: "Est septimus 
modus regiminis, qui est in civitate Eomana, nunc pessimus. Ibi 
sunt multi tyranni per diversas regiones adeo fortes, quod unus contra 
alium non prae valet. Est enim regimen commune totius civitatis 
adeo debile, quod contra nullum ipsorum tyrannorum potest, nee 
contra quern adhaerentem ipsis tyrannis, nisi quatenus ipsi patiuntur; 
quod regimen Aristoteles non posuit; est enim res monstruosa. Quid 
enim, si quis videret unum corpus habens unum caput commune 
debile, et multa alia capita communia fortiora illo, et invicem sibi 
adversantia? Certe monstrum esset. Appelletur hoc regimen mon- 
struosum. Hoc enim divina permissione factum est, ut ostendat quod 
omnis gloria mundi caduca est." 

2 Cf. Lucas de Penna, Comment, on Codex, Tres libri (C. xi. 12. 
1), p. 403: "Haec civitas (Eome) multa sortita est nomina... quorum 
pauca in effectu vera sunt hodie. Item dicitur gloriosissima....Item 
augustissima....Item caput omnium civitatum....Sed, ut praedixi, ex 
praedictis nominibus hodie pauca vel nulla conveniunt; potius ei 
congruit illud Esaiae (C. 1) — ' Quomodo facta est meretrix civitas 
fidelis, plena judicii.' " 

3 Vide below, p. 171, n. 2. 4 Tract, de Tyrannia, pp. 321-7. 

11—2 



164 THE EMPIRE AND THE CIVITATES [CH. 

non jure principatur 1 ," and so there may be a tyrant in 
the "communi reipublica Romanorum," or in a single 
province, or in a city, or in a household 2 , or lastly a man 
may be a tyrant of himself 3 . But here, as ever, the real 
interest of Bartolus is in the Civitas 4 ; and so, following 
S. Gregory's definition — "tyrannus civitatis est qui in 
civitate non jure principatur 5 ." Here Bartolus draws 
certain distinctions. There is the "tyrannus mani- 
festus " and the " tyrannus velatus et tacitus " ; the 
"tyrannus ex parte exercitii," and the "tyrannus ex 
defectu tituli " ; finally the " tyrannus velatus " is 
sometimes tyrant "propter titulum," sometimes "propter 
defectum tituli 6 ." 

First as to the "tyrannus manifestus ex defectu 
tituli." Such a tyrant may arrive at power in various 
ways. He may make himself rector of a city which 
has no "jus eligendiV' or, in a city which has that 
right, he may force the citizens to elect him, and then 
he too is a tyrant " ex defectu tituli," since the juris- 
diction, thus transferred through fear, is not valid 8 . 
Bartolus then asks a question of cardinal importance — 
whether what is done by such tyrants " ex defectu 
tituli" or during the time of their tyranny is valid. 
As to the acts of the tyrants themselves — " ea quae 

1 § 2. 2 This is discussed at length in § 11. 3 § 5. 

4 We may pass over §§ 8-11. The rest deal with the Civitas — 34 
out of 45 paragraphs. 

5 § 12. 6 Ibid. 7 § 13. 

8 § 14. In § 15 he describes the many ways in which this can be 
brought about. E.g., "si exercitus fiat contra civitatem sine consensu 
superiorum....Si cum gente forensi pugnando expugnavit civitatem." 
If "cum hominibus ejusdem civitatis facto rumore et seditione se 
faciat eligi in dominum," then, as elected "per metum," his title is 
invalid, and he is still "tyrannus manifestus ex defectu tituli." 



Il] THE EMPIRE AND THE CIVITATES 1G5 

fiunt per ipsos tyrannos tamquam jurisdictiones ha- 
bentes " — they are "ipso jure nulla 1 ." Equally null 
are the acts of officials appointed by the tyrants. 
Whether the acts of officials, not directly appointed by 
the tyrant, but by the city itself, " patienfce tyranno," 
are also invalid, is more doubtful. There is much to 
be said on both sides 2 . Against their validity may be 
urged that during a tyranny no official can be said to 
be freely elected. Further, a decretal is cited as lay- 
ing down that " tempore schismatis non potest agi vel 
prescriptio currere. Sed tempore tyranni potest dici 
tempus schismatis. Scindit enim tyrannus et separat 
communionem universalis Imperii." On the other hand 
"insurgeret iniquitas," if it were held that, where a 
tyranny lasts a long time, " omnia celebrata et acta 
in eorum curiis" were null. Finally Bartolus dis- 
tinguishes those acts which the people does itself, and 
would have done even had there been no tyrant — " ut 
decisiones quarundarum causarum contrariarum quas 
quilibet tyrannus patitur ire sub regulis justitiae" — 
from those which would not have been done, had there 
been no tyrant : the former are valid, the latter not 3 . 
Then as regards contracts 4 . If the Civitas itself 
gives or grants anything to the tyrant, the contract is 
" ipso jure " null. So, contracts between the tyrant and 
individual subjects are null. As to contracts between 
the tyrant and non-subjects, if they are to the detri- 
ment of the Civitas, they are null; if they are in 
its favour, then also they are probably null, though 
Hostiensis decides the contrary. Lastly there are 

1 § 16. 2 § 17. 3 §§ 18-9. 4 §§ 20-2. 



166 THE EMPIRE AND THE CIVITATES [CH. 

certain acts which do not come under the head of 
contracts ; here again we have similar distinctions 1 . 

Then we come to the tyrant " ex parte exercitii," 
and since he has a just title, he is "less properly" 
called a tyrant 2 . Still tyrant he is. Bartolus gives 
ten examples from Plutarch 3 of the tyrannical acts of 
such tyrants, the most important of which, as proof of 
tyranny, are, according to Bartolus 4 , the sixth, keep- 
ing the city divided, and the seventh, pauperizing 
his subjects. Then as to the validity of his acts 5 . 
A process instituted by him against a rebel is null, 
since no one need appear before a judge notoriously 
hostile ; other processes are valid, so long as his sub- 
jects tolerate him. If, however, a process is instituted 
by which the tyrant himself is to be deprived by his 
superior, and, if the sentence is such that he is de- 
clared "ipso jure" deprived of his jurisdiction, "vel 
dicitur servus vel infamis," then acts of the tyrant 
done after the process was begun are null; but if he 

1 Vide §§ 23-5. Bartolus asks whether in such a case — i.e. when 
"non contrahit tyrannus, sed distrahit per se vel suos ofhciales" — 
"solutionem eorum quae reipublicae debebantur recipiendo, an sint 
libera ti solventes," and draws various distinctions on the lines laid 
down for contracts. § 26 however must be noted in detail: "Quan- 
doque tales tyranni non contrahunt, nee distrahunt, et patiuntur 
bona et jura civitatis deperire et praescribi : tunc puto quod contra 
civitatem non praescribatur....Dico etiam, quod si aliqua jurisdictione 
competenti ipsi civitati tyrannus uteretur, non autem a civitate, sed 
ab altero recognosceret : quod quantum ad se, videtur uti nomine 
alieno : sed quantum ad civitatem, videtur uti nomine suo si per ilium 
usum civitas retinet jus suum." 

2 § 27. 3 §§ 28-30. 

4 § 30 : " Omnia ergo praedicta sunt signa ad probandum tyranni- 
dem: sed principaliter ilia duo, scilicet servare civitatem in divisione 
et depauperare subditos, et eos affigere in personis et rebus." 

5 §§ 35-7. 



II] THE EMPIRE AND THE CIVITATES 167 

is deprived by the sentence itself (not " ipso jure "), 
then " interim gesta per eum valent, quia interim 
dignitatem retinet." And so with contracts etc. x : they 
are valid so long as they are made while he still retains 
his dignity — unless they are to the detriment of the 
city, as, for example, if he forces the people to grant 
him " plus jurisdictionis." 

Lastly, as to the " tyrannus tacitus et velatus " — 
" ut est ille qui sub quodam velamine non juste prin- 
cipatur in civitate 2 ." Such veiled tyranny can be 
brought about in two ways : — (1) when anyone has 
conceded to him jurisdiction for a certain time, and 
after that time has it confirmed 3 ; and (2) when the 
tyrant has himself appointed to some quite minor post, 
as vexillifer or gonfalonier or captain of mercenaries, 
and governs despotically under cover of that office 4 . 
As regards the first, " de jure communi" the pro- 
curing of such jurisdiction is illegal; but in the case 
of an independent Civitas — "si poneres quod tanta 
esset potestas dicti populi quod posset contra dictam 
legem dispensare " — it must be considered whether the 
tyrant has so strengthened himself during his first 
period of power, that the confirmation of it may be 
said to be forced from the citizens through fear. He 

1 § 37: "...Si aliquis est in nobili potestate et habet justum 
titulum, licet respectu exercitii sit tyrannus, tamen habet beneficium 
...donee in dignitate toleratur...secus si esset defectus tituli....Item 
dico quod postquam talis habens titulum devenit ad tyrannidem per 
modum exercitii, si aliquid sibi plus jurisdictionis concedi fecerit a 
populo, non valeret, quasi populus per me turn faceret....Item omnis 
contractus, quern faceret de ipsam civitatem submittendo, vel obligando 
earn, non valeret; non enim loco domini est, cum ipsam civitatem 
spoliat sua libertate." 

2 § 38— end. 3 § 38. 4 § 41. 



168 THE EMPIRE AND THE CIVITATES [CH. 

then falls under the heading of tyrants " ex defectu 
tituli," elected "per metum 1 ." In the second type of 
veiled tyranny, proof that this " regimen " is tyranny is 
difficult, though public fame will suffice 2 . The answer 
to the question whether acts done during this sort of 
tyranny are valid, is the same as in the question of 
acts done by officials elected by the people themselves 
during a tyranny, which we have examined above 3 . If, 
however, it is only a fraction of the people who are 
abused by this tyranny, while in general the city is 
well governed, then the tyrant is not a tyrant " sim- 
pliciter loquendo," since by his government " communis 
utilitas attenditur, quod directo est oppositum tyranni" 
— though as regards " extrinsecos " and " inimicos," he 
may still be considered a tyrant 4 . For any government, 
in which only the public good is sought, is a rarity ; 
complete absence of self-interest is not to be expected 
in human princes 5 . " Illud tamen dicimus bonum 
regimen et non tyrannicum in quo plus praevalet 
communis utilitas et publica quam propria regen- 
tium; illud vero tyrannicum in quo propria utilitas 
attenditur. Et istud dicit Egidius in III libro De 
regimine principum (cap. xi.) et istud est precipue 
attendendum quando tractatur de probando an aliquis 
sit tyrannus 6 ." Bartolus finally adds a third species 



i §§ 39-40. 

2 § 41 : "Sed hoc qualiter poterit probari, cum talis sit velatus 
tyrannus, et per se non facit, in palatiis raro intrant, sed suis scriptis 
et nunciis regimina obediunt? Eespondeo dura probatio est.... Item 
quod ille talis, qui habet ilium titulum est potentior homo, qui sit in 
civitate, et est publica fama quod facit praedicta fieri, satis puto 
probatam tyrannidem." 

3 § 42. 4 Ibid. 5 § 43. 6 § 44. 



II] THE EMPIRE AND THE CIV1TATES ] 69 

of veiled tyranny — when the tyrant has no title, but 
yet "omnia procedunt secundum velle suum." As re- 
gards the " probatio " of this species of tyranny and the 
validity of acts done under it, the answer is the same 
as in the case of previous species 1 . 

In order to complete our analysis of this treatise, 
a few points still remaining may be touched upon. 
We notice that throughout Bartolus is providing both 
for the Civitas that does, and for the Civitas that does 
not, recognise a superior. In certain cases this difference 
has been followed by different consequences. In the 
same way the tyrant himself may have a superior, and 
this is very likely to be the case with tyrants " ex parte 
exercitii," such as dukes and counts. These the superior 
must depose 2 . 

Secondly we have to note the exceedingly interesting 
way in which every conclusion drawn by Bartolus is 
supported by the authority of the Law Books or the 
Canons. Bartolus does not attack tyranny on general 
or ethical, but on strictly legal, grounds. Nothing- 
shows this better than the various penalties to which 
Bartolus holds the tyrant amenable. Tyrants " ex 
defectu tituli" are amenable to the Lex Julia Majes- 
tatis 3 ; while tyrants "ex parte exercitii" fall under 
the Lex Julia de Vi Publica, the Lex Julia de Ambitu 
and many other laws ; perhaps even " in poenam capi- 
talem." And without doubt " si existans in tali tyran- 
nide quoquo modo publice vel occulte machinatur contra 
Principem vel ejus officialem, ipso jure sunt rebelles 
Imperii, et dignitatem pendunt : secundum legem 
novam Theodosii Imperatoris 4 ." 

1 § 45. 2 § 31. 3 § 32. 4 § 33> 



170 THE EMPIRE AND THE CIV1TATES [CH. 

There was however one way in which the tyrant 
might obtain a lawful title for his government, an 
expedient frequently resorted to both by the Popes 
and by the Emperors of this period in their dealings 
with tyrants. The tyrant might be made an Imperial 
or Papal vicar; nothing could better illustrate the 
practical aim of this treatise than Bartolus' handling 
of this point 1 . We cannot think, says Bartolus, that 
the Pope or the Emperor would acknowledge the 
obvious tyrant and legalise his tyranny without good 
cause ; and so he approves it on the grounds of ex- 
pediency — just as a sailor throws overboard the less 
valuable, that he may save the more precious, goods. 

1 § 34. Bartolus' words are well worth quoting: "Quid dicimus 
de his, quae videmus fecisse summum Pontificem et Imperatorem et 
legatos (the Pope was of course still at Avignon)? Nam quosdam 
quos clare cognoscebant esse tyrannos, quos per tyrannidem detine- 
bant, et eos episcopos, scilicet sedis apostolicae, vel Imperii constitue- 
bant vicarios ; ut fecit Clemens VI in civitate Bononiensi de domino 
Thaddaeo de Populis et ejus filiis. Hoc idem fecit Carolus Imperator 
cum tyrannis in Lombardia. Hoc idem dominus legatus cum multis 
tyrannis fecit in Marchia Anconitana. Bespondeo, praesumendum 
est quod tanti domini hoc sine magna causa non faciunt. Et potest 
esse duplex causa. Prima, propter aliqua magna et ardua, quae eis 
expedire incumbat. Sicut enim diligens nauta projicit viliora, ut 
salvet pretiosiora...sic etiam dominus Justus cum uno tyranno per- 
transit, et eum vicarium facit, ut ea quae sunt magna et ardua, 
reformare posset. Secunda ratio posset esse charitas et dilectio 
eorum, qui sunt sub tyranno. Sicut enim videmus naturaliter 
physicos facere, quando una infirmitas non potest sine magno peri- 
culo personae curari, tunc ipsi procurant sustentare naturam, ne 
infirmitas procedat ulterius, ex quo sequitur quod natura semet ipsam 
adjuvat; ita quandoque rectus Princeps facit, videns quod quandoque 
unus tyrannus non potest deponi sine magno exterminio eorum qui 
sunt sub tyranno, propter bona eorum ipsum tyrannum facit vicarium, 
ut ex hoc ille tyrannus minus timeat, minus populum gravet; et 
interim casus occurrit, per quern, suadente justitia, sine populi detri- 
mento deponetur tyrannus etc." 



II] THE EMPIRE AND THE CIVITATES 171 

And often it is for the good of the tyrant's subjects ; 
since to depose him at once might mean the exter- 
mination of many of them ; therefore the tyrant is 
made vicar, " ut ex hoc ille tyrannus minus timeat, 
minus populum gravet," until later, in the course of 
events, the tyrant may be deposed without danger 
to his subjects ; for if after receiving the title he 
acts tyrannically, he is still a tyrant "ex parte exercitii." 
And so we see that Bartolus has in no sense shut 
his eyes to the fact of tyranny. He has not been con- 
structing a merely academic theory of the independence 
of the Ci vitas, while in fact that Ci vitas, in the majority 
of cases, was falling or had fallen into dependence. On 
the contrary he has treated both the Civitas and the 
tyrant from a distinctly practical point of view. 
Tyranny, he says again elsewhere 1 , is the worst of all 
forms of government, and no proof of this is needed. 
It is something not normal in the life of the Civitas, 
something monstrous, that must be taken into con- 
sideration, so long as it lasts, but must not be accepted 
as final. The independence of the Civitas must therefore 
be established, because the tyranny will pass — though 
God knows when 2 . Just for this reason, therefore, it was 
important to decide how far the acts of tyrants, while 

1 Be Beg. Civitatis, p. 421, § 27: "Tyrannus autem est pessimus; 
hoc autem est ita manifestum, quod demonstratione non eget." 

2 Cf. Comment, on Codex, Part i. (C. i. 2. 15), p. 65: "Nota 
quod omnia facta tempore tyrannidis, superveniente justo domino, 
debent cassari et irritari, quod nota. Sed Deus scit quando super- 
venit Justus dominus." We have seen however that all the acts are 
not to be considered invalid. With this should be compared an 
interesting passage in the Comment, on Dig. Nov. Part n. (D. l. 13. 1, 
§ Divus), p. 680, § 15; which brings out how Bartolus looks on 
tyranny as an episode, liable to appear anywhere, as a not normal 



172 THE EMPIRE AND THE CIVITATES [CH. 

the tyranny lasts, are valid. When Bartolus tells us 
that tyrants fall under the Lex Julia Majestatis or the 
Lex Julia de Vi Publica, it may indeed seem that he is 
merely playing with Roman texts in a fanciful and 
very unpractical manner. But such reasoning would 
strike the fourteenth century very differently. The 
medieval mind needed authority, and it was no small 
victory for freedom, when a great lawyer gave out as 
authoritative that the tyrant was amenable to these 
laws. This however is but a small part of the 
treatise. As a whole it is a thorough and highly 
meritorious attempt to examine the nature of tyranny, 
to find a standard for judging the validity of its 
acts, and, above all, to provide that both the pass- 
ing away of tyranny, and the tyranny itself, while it 
lasted, should be attended with as few difficulties as 
possible. 

change in the "status" of the Civitas: " Quaere- , aliquis est electus 
potestas hujus civitatis. Post acceptum officium, antequam vadat, 
civitas mutat statum et ibi insurgit quidam tyrannus, vel aliqua 
secta, ita quod exercitium justitiae non remanet liberum potestati, an 
debeat habere salarium. Eespon. sic integrum. Videtur enim stare 
per ipsam civitatem vel per casum fortuitum in ipsa civitate contin- 
gentem, ut supra dictum est (i.e. in the commentary on this para- 
graph). Juste enim timet qui non vult accedere sub ipso tyranno.... 
Item secundum mores nostrae civitatis turpe et verecundum est 
accedere ad ilium locum, ubi quis non possit justitiam libere exercere : 
ideo videtur non posse accedere, cum honeste non possit.... Et eadem 
rati one dico quod si durante officio insurgit tyrannus in civitate, vel 
aliqua secta, vel aliquid fit ex quo rector non potest remanere sine 
verecundia, quod potest reverti et debet habere totum salarium, Ita 
fuit observatum Bononiae in persona domini Jacobi de Gabrielibus, 
quando venit legatus. Et idem fuit observatum Pisis. Istud an 
possit remanere sine verecundia, vel non, debet intelligi secundum 
mores civitatis nostrae.... Unde illud quod reputaretur verecundum 
apud bonos et graves homines, illud deberet timeri." 



Il] THE EMPIRE AND THE CIVITATES 173 

But it may be objected that Bartolus is here funda- 
mentally wrong. Tyranny, it may be said, was not 
a mere passing phenomenon; the day of the free city 
in Italy was over; and the tyrant was there to stay, 
and to lead straight on to Macchiavelli's "Principe." 
That is all undoubtedly true. But we stand on this 
side of the Renaissance, and can realise the truth. 
Bartolus lived in the fourteenth century, when tyranny 
was still spasmodic, rising and falling in the play of 
factions, supplanting free government, and being itself 
supplanted either by another free government or by 
a new tyranny; while the bands of mercenaries, which 
in the next century were to be at once the mainstay 
and the ruin of the tyrants, were a still newer phe- 
nomenon, the great importance of which only began 
with the Italian expeditions of John of Bohemia 1 , 

With all reason, then, according to the actual con- 
ditions of his time, Bartolus does not accept tyranny as 
more than an episode. If the city owns a superior, the 
tyrant usurps both the rights of the Civitas and of the 
superior, and is, if possible, to be deposed; where that 
is impossible, it may often be expedient to legalise the 
tyranny in the form of a vicariate. If the city owns 
no superior, it is the people itself whose rights are 
usurped. 

We shall therefore for the rest of our analysis follow 
Bartolus in leaving out of account the fact that actually 

1 Problems connected with the mercenaries occur quite frequently 
in Bartolus; e.g. in the Tract. Repraesalium, Quaest. v. 5, p. 334, 
§ 12, he says that mercenaries are considered citizens of the place 
where they are earning their hire. And in the Tract, de Tyrannia, 
§ 41, one of the methods of the "tyrannus velatus" is to get himself 
appointed " capitaneum stipendiariorum vel gentis armigerae." 



174 THE EMPIRE AND THE CIVITATES [CH. 

the majority of Civitates were under the power of 
tyrants, viewing tyranny as a non-normal episode in 
the life of the Civitas, which leaves the rights of 
the Civitas itself unimpaired. What remains to be 
considered we may now divide under two heads. So 
far we have the independent Civitas, and considered 
in its relations to the Empire, we have seen it recog- 
nised as "sibi princeps." Now, continuing, we shall 
consider it from the point of view of (i) its internal 
government ; (ii) its external relations with other 
political bodies. 

(i) The treatise Be Regimine Civitatis 1 might be 
called the one piece of writing by Bartolus, in which 
the purely theoretical political interest is predominant, 
though even here he gives, as the reason for composing 
the treatise, that such considerations are necessary to 
the jurist; and though, as was natural, he depends, as 
regards the theoretical divisions of polities, on Egidius 
Romanus and the Aristotelians, he is continually giving, 
in his usual manner, practical examples from the history 
of his time and from his own experiences. 

Nothing could better illustrate the character of 
the political thought of Bartolus than the opening 
paragraph of this treatise. "Quia haec est ultima pars 
Tyberis, et sic in urbe Romana, quae caput est mundi: 
ideo circa modum regendi civitatem aliqua videamus." 
His first inquiry is — "Quot modis regitur civitas?" 
"Ex legibus nostris colliguntur tres modi regendi boni 
et tres ejus contrarii. Aliquos modos apertius declarat 
Aristoteles (3 Politia) et ibi eos modos suis nominibus 
nominat. Nos vero et de illis nominibus mentionem 
1 pp. 417-21. 



Il] THE EMPIRE AND THE CIVITATES 175 

faciemus, et nomina secundum praesens tempus con- 
gruentius inseremus. In urbe quidem Romana, ex- 
pulsis regibus, tres modi fuerunt regendi." We notice 
how in all this the traditions of the Roman lawyers are 
meeting the new Arisfcotelianism. According to the 
former, the material for investigation is "leges nostrae" 
— Justinian's Law Books ; and as a result the Civitas, 
whose government is under discussion, will be the Civi- 
tas — Rome. According to the latter, the material for 
investigation is the Civitas in general, the 7roXt?. And 
thus from the fusion of these two lines of thought, we 
get the curious method pursued in the opening para- 
graphs of this treatise. Taking the history of Rome, 
after the expulsion of the kings, he divides it into three 
periods, each of which corresponds to one of the Aristo- 
telian divisions — UoXirela, Aristocracy and Monarchy, 
or their bad forms of Democracy, Oligarchy and Tyranny. 
Finally to each of these Bartolus applies "nomina 
secundum praesens tempus congruentius." 

There are thus six " modi regiminis," three good 
and three bad 1 . The seventh, unknown to Aristotle, 
that of the numberless petty Roman tyrants of his 
day, Bartolus holds no "regimen," but a monstrosity 2 . 

Then comes the question, which is the best form of 
government? It is an investigation, says Bartolus, 
very necessary to the jurist 3 . The question is investi- 
gated by Aristotle, but "clarius" by Egidius Romanus, 
"qui fuit magnus philosophus et in theologia magister"; 
hence Bartolus will follow him, and not Aristotle, whose 
words "juristis, quibus loquor, non saperent 4 ." 

According to Egidius, then, " regimen ad populum " 
1 § 4. 2 § 5. 3 § 6. See above, pp. 19-20. 4 § 7. 



176 THE EMPIRE AND THE CIVITATES [CH. 

is good, if it fulfils its end; aristocracy is better; but 
monarchy is best 1 . 

Bartolus next proceeds to set forth at length the 
reasons advanced by Egidius, the dialectical "oppo- 
sitions" advanced against these reasons by Egidius 
himself, and his final reply to these objections 2 . To 
these Bartolus appends some considerations of his own 3 , 
and then comes to the most remarkable and original 
part of his treatise, He makes a triple division 
of cities or peoples 4 — the city or " gens magna in 
primo gradu magnitudinis," the city or "gens major 
in secundo gradu magnitudinis," and the city or 
" gens maxima in tertio gradu magnitudinis " ; each 
of these grades is made to correspond with the three 
divisions of Roman history. 

The city or "gens magna in primo gradu magni- 
tudinis " should not be governed either by a monarchy 
or by an aristocracy 5 . When the Ci vitas Romana was 
"in primo gradu magnitudinis," it expelled its kings. 
It cannot support the expenses of monarchy, and the 
monarchy itself tends to become a tyranny. Neither 
is aristocracy good. Either the "multitudo populi de 
illorum paucorum regimine indignabitur," as happened, 
says Bartolus, at Siena 6 , or civil discords ensue, "ut 
saepe vidimus in civitate Pisarum 7 ." No, the best 

1 § 7. 2 §§ 8-9. 3 §§ 10-4. 4 § 15. 5 § 16. 

6 § 16: " Fuit enim (at Siena) annis fere octoginta quidam ordo 
hominum divitum, regentium civitatem bene et prudenter: tamen 
quia populi multitudo indignabatur, oportebat eos praestare cum 
magna fortia militari. Qui ordo depositus est in adventu Caroli IV 
illustrissimi Imperatoris tunc regnantis. Ipsius Principis factum com- 
probat, quod talis regendi modus in talibus civitatibus non est bonus." 

7 Ibid.: "Aliud inconveniens potest sequi: quia ilia pauca (sic), 



II] THE EMPIEE AN J) THE CIVITATES 177 

form of government for such cities is "regimen ad 
populum." Proof is to be found in the flourishing state 
of Rome when it was so governed 1 , and in the flourish- 
ing state of Perugia to-day — "quae isto jure regitur 
in pace, et unitate crescit, floret" — where its rulers 
are elected " secundum vices " and remain under the 
supervision of the electors 2 . And often, says Bartolus, 
the event proves that what was done by the popular 
Council, though disapproved by the wise, was rightly 
done 3 . This regimen is "magis Dei quam hominum," 
and Bartolus heard the Emperor Charles IV com- 
mend it 4 . Finally he makes two important reservations. 
First that "regimen ad populum " means, not that the 
government is managed directly by the people, but 
that the "jurisdictio" is with them — " istud autem 
regimen est sic dictum, quando jurisdictio est apud 
populum seu multitudinem, non autem quod tota 
multitudo simul aucta regat, sed regimen aliquibus 
per tempus committit secundum vices et secundum 
circulum 5 ." The second reservation is that when he 
says that the " regimen " is in the multitude, he means 
"exceptis vilissimis " ; similarly too powerful magnates 
may also be excluded 6 . Bartolus takes every pre- 
caution in restraining his Democracy. "In dictis civi- 
tatibus, si honores et munera secundum gradus debitos 

ut naturaliter evenit, poterint inter se dividi : ex quo civitatibus 
occurrunt rumores, seditiones, ineendia et civilia proelia: ut saepe 
vidimus in civitate Pisarura." 
1 Ibid. 2 § 17. 

3 Ibid. : " Et saepe visum est per consilium hominum communium 
deliberari quaedam, quae a sapientibus et prudentibus malefacta visa 
sunt: eventus vero manifestavit esse prudentissima facta." 

4 § 18. At Pisa 1355. 5 Ibid. « § 19. 

w. 12 



178 THE EMPIRE AND THE CIVITATES [CH. 

distribuuntur, bonum est regimen et ad superiorem 
spectat reformatio 1 ." 

We now come to the " major gens " or "populus 
in secundo gradu magnitudinis 2 ." For these govern- 
ment "per paucos" is best. So Rome, when she 
had increased to the second grade of greatness, was 
governed by her senators. As modern examples Bar- 
tolus gives Venice and Florence, explaining that their 
rulers may be said to be "pauci" with respect to 
the size of these cities, though compared with other 
cities they are " multi." It is better that they should 
not be too few, as thus they remain more united. 
This is the best " regimen " for the city in the second 
grade of greatness — but, says Bartolus, there is no hard 
and fast rule. If a " gens " or " populus " is accustomed 
to some other "regimen," then that other "regimen" 
is preferable, and should be preserved 3 . 

Thirdly we have the " gens " or " populus maximus 
in tertio gradu magnitudinis 4 ." This last grade hardly 
refers to the Civitas 5 , but if there does exist so great 
a city, it will be best governed by monarchy. So in 
the case of Rome — " aucto multum Imperio Romano, et 
captis multis provinciis, deventum fuit ad unum, scilicet 

1 § 19. 2 § 20. 

3 § 21 : " Praedicta vera nisi de antiquo regendi modo civitatis 
aliud appareat. Potest enim esse quod una gens vel populus ita 
assuefacti sunt certo modo regendi, quod eis quasi in naturam con- 
versum est, et aliter vivere nescirent : tune antiquus modus regiminis 
servandus est." 

4 §§ 22-5. 

5 "Hoc autem (i.e. the tertius gradus magnitudinis) fere posset 
contingere in civitate una per se ; sed si esset civitas, quae multum 
aliis civitatibus et provinciia dominaretur, huic genti bonum est regi 
per unum." §22. 



Il] THE EMPIRE AND THE CIVITATES 179 

ad Principem." In favour of monarchy are also all 
the arguments of Egidius, which Bartolus has already 
examined. Besides, in so great a multitude there will 
necessarily be many good men to advise and help 
the king to govern justly — "et sic de facto com- 
muniter videmus, quod tanto melius gens vel populus 
regitur, quanto sub majori vel potentiore rege regitur." 
Monarchy includes both the Empire and particular 
kingdoms, duchies, counties, etc. 1 . All kings are elected 
mediately or immediately by God; but "reges particu- 
lars sunt magis ex constitutione hominum": therefore, 
unlike the Empire, their kingdoms go by succession. 
It is only with regard to these particular kingdoms 
that we can accept the statement of Egidius that suc- 
cession is preferable to election ; for the Empire must 
go by election, which is a more divine method than 
succession 2 . Bartolus then, in a passage which we 
have already noticed, considers the translation of the 
Empire from the Romans to the Germans. The "populi 
parvi" he does not discuss. They are either subject to, 
or allied with, some greater power, and therefore not 
independent 3 . 

Finally Bartolus considers the three bad "modi 
regiminis 4 ." Of these tyranny is the worst, for through 

1 § 3: " Tertius regendi modus est per unum...et istud secundum 
Aristotelem appellatur regnum. Nos vero, si iste est dominus univer- 
salis, appellamus Imperium...si vero particularis, aliquando appellatur 
regnum, aliquando ducatus, marckia vel comitatus....Ducatus vero 
communi nomine appellamus regimen domini naturalis : et hoc, si 
dictus dominus in communem et bonum finem tendit. Si vero tendit 
in malum finem et in proprium commodum, secundum Aristotelem 
appellatur tyrannis. Sic etiam secundum leges et mores appellatur." 

' 2 §§ 23 and 24. 

3 § 26. 4 § 27-9. 

12—2 



180 THE EMPIRE AND THE CIVITATES [CH. 

it, more than any other, "ab intentione communis boni 
receditur" 1 — except for that seventh and monstrous 
regimen, "quod est nunc in urbe Romana," to which 
Bartolus here returns. And he ends with a salutary 
warning to the cities. " Item advertendum est, 
quod regimen plurium malorum vel regimen populi 
perversi non diu durat, sed de facili in tyrannidem 
unius deducitur. Hoc enim de facto saepius vidimus. 
Hoc etiam permissione divina est, cum scriptum sit: 
'Qui regnare facit hypocritem propter peccata populi' 
(Job xxxiv. cap.), et quia hodie Italia est tota plena 
tyrannis." 

From our analysis of this treatise it is clear that 
Bartolus, while unwilling to lay down any general 
statement that this or that mode of government 
is absolutely the best, is of opinion that, for the 
majority of the Italian cities at least, government by 
the people is best. His view of the comparative 
value of any form of government is certainly signifi- 
cant, it may be even original. But for the ordinary 
Civitas, with which we are here concerned, "regimen 
ad populum" is the best; while we saw that Bartolus 
was careful to point out that this does not mean that 
the people itself directly conducts the government, 
but that it commits the government to its officials 
"secundum vices et secundum circulum." 

1 ' ' Omnes philosophi clicunt quod tyrannis est pessimus prin- 
cipatus; tenet enim ultimum gradum malitiae." In the government 
of many, even if bad, some part of it may tend to the common good : 
"sed si unus est tyrannus, etiam totum recedit a communi bono. 
Praeterea sicut virtus unita in bonum est melior, ita unita in deterius 
est deterior. Tyrannus autem est pessimus. Hoc autem est ita 
manifestum quod demonstratione non eget." (§ 27.) 



Il] THE EMPIRE AND THE CIVITATES 181 

The sovereign power resides with the people as a 
whole, collected in their Adunantia Generalis, Arenga 
or Parlamentum ; the government resides in the 
Concilium which they elect and which is then their 
representative. Discussing the election of syndics and 
officials 1 , Bartolus says that this belongs to the Con- 
cilium — there is no need for the Adunantia to make 
the elections, since the Concilium, once elected by the 
people in its Adunantia, "repraesentat totum populum 2 ." 
Similarly statutes passed by the Concilium are "jus 
civile," no less than statutes passed by the whole people 
in its Adunantia, since the Concilium " repraesentat 
totum populum 3 ." 

Bartolus identifies this Concilium with the "ordo 
decurionum 4 ," as the "ordo per quern regitur civitas"; 

1 Comment, on Codex, Tres libri (C. x. 31. 2), p. 37, § 8: "Item 
nota quod de jure communi ad concilium civitatis spectat facere 
electiones omcialium et syndicorum....Et sic non erit opus arenga 
vel adunantia generali. Arenga tamen seu parlamentum illud, ubi 
non est aliquis superior, habet ab initio concilium eligere....Istud 
concilium sic electum postea repraesentat totum populum." Cf. 
Comment, on Infort. Part n. (D. xxxvi. 1. 26), p. 433: " Quaero 
qualiter constituatur syndicus a civitate. Glossa notabiliter dicit, vel 
fiat per adunantiam generalem totius populi, vel per concilium seu 
ordinem per quam regitur civitas. Vel forte aliquis qui est syndicus 
ex lege vel ex consuetudine sicut est hie: nam unus ex judicibus 
capitanei, eo ipso quod est judex illius tribunalis, est syndicus 
civitatis." 

2 The phrase occurs repeatedly. Cf. Comment, on Dig. Vet. Part n. 
(D. xii. 1. 27), p. 51, § 2: "...Ipsa civitas seu concilium, quod totam 
civitatem repraesentat." So cf. Comment, on Dig. Vet. Part i. (D. i. 
1. 9), p. 29, § 16. Cf. also Comment, on Dig. Vet. Part i. (D. i. 3. 31), 
p. 60, § 10. 

3 Comment, on Dig. Vet. Part i. (D. i. 1. 9), p. 29, § 16. The 
same rules apply to the procedure of making statutes whether by the 
Populus itself or the Concilium, which represents the whole Populus. 

i Vide e.g. Comment, on Codex, Part i. (C. iv. 32. 5), p. 483 : 



182 THE EMPIRE AND THE CIVITATES [CH. 

and a theory which, "while professedly taken from the 
Roman law of the Decuriones, is really drawn from the 
constitutions of the medieval Italian city 1 ," was elabo- 
rated in such a way as to restrict the competence of these 
representatives of the people strictly within the limits 
of the powers conferred upon them by the represented 
people. The governing officials — whether they be 
called Decuriones, Priores, Antiani — have a certain 
"arbitriumV within which they act as the representa- 
tives of the people, and beyond which they can only 
act by express command of the people. 

In the elaboration of this theory, Bartolus, according 
to Dr Gierke, took a leading part; we can therefore 
not do better, in order to give a clear example of 
his democratic handling of the internal government 
of the Civitas, than to analyse his theory of the 
relations of the government to the whole people, as 
developed by him in his commentary on the law of 
the Digest relating to the "ambitiosa clecreta" of the 
Decuriones. 



' ' Advertatis quia concilium civitatis aequiparatur ordini decurionum : 
conciliarii decurionibus." 

1 Vide Gierke, Deutsche Genossenschaftsrecht, vol. in. pp. 394-5. 

2 Vide e.g. Comment, on Dig. Nov. Part n. (D. l. 1. 3), p. 647, § 8: 
"...Si priores habent arbitrium super publica utilitate communis, quod 
ipsi non possunt statuere nisi de his quae pertinent ad publicam utili- 
tatem principaliter. ' ' Ibid. : ' ' Nota. . .quod ad decuriones pertinet dare 
tutores, quod intelligo quando eis specialiter esset permissum, alias 
non possent." Vide also how Bartolus interprets the words of the 
law against the "ambitiosa decreta " of the Decuriones — " Sed etsi 
salarium alicui decuriones decreverint, decretum idnonnumquam ullius 
erit momenti: ut puta si ob liberalem artem fuerit constitutum vel 
ob medicinam: ob has enim causas licet constitui salaria " (D. l. 
9. 4). In Comment, on Dig. Nov. Part n. (D. l. 6. 2), p. 664, he 
asks who can grant immunity from financial burdens. He answers, 



II] THE EMPIRE AND THE CIVITATES 183 

It may be well to give the actual words of the 
law 1 : " Ambitiosa decreta decurionum rescindi debent, 
sive aliquem debitorem dimiserint sive largiti sint. 
Proinde, ut solent, sive decreverint de publico alicujus 
vel praedia vel aedes vel certain quantitatem praestari, 
nihil valebit hujusmodi decretum. Sed etsi salarium 
alicui decuriones decreverint, decretum id nonnumquam 
ullius erit momenti : ut puta si ob liberalem artem 
fuerit constitutum vel ob medicinam : ob has enim 
causas licet constitui salaria." There could be no 
better example than the commentary of Bartolus on 
this law of the way in which the Postglossators handle 
the texts of their Law Books. 

" Habeo istam legem pro difficili," says Bartolus in 
beginning his commentary 2 . He starts from the nul- 
lity of these " ambitiosa decreta," but his preliminary 
discussions need not at present detain us 3 . Then 
he asks an important question — by whom are such 
" decreta " to be rescinded ? The answer is, by the 
superior, where there is one; where there is no superior, 
by the "concilium majus civitatis 4 ." Again, granted 

" doetoribus et medicis potest concedi per decuriones, hoc est per 
ordinem civitatis, aliis vero non posset concedi per illos et sic requi- 
reretur adunantia generalis." 

1 D. l. 9. 4. 

2 Comment, on Dig. Nov. Part n. (D. l. 9. 4), pp. 669-73. 

:5 Vide §§ 1-5. A short analysis of this law will be found in Gierke, 
op. cit., vol. in. p. 295, note 176. I have thought it better, however, 
here, as usual, to give Bartolus' own words, and by analyzing this 
passage in detail, to give at once a succinct view of his democratic 
conception of the relation of the government to the people. 

4 § 6: "Respondeo, rescindantur a superiore, si est, ut puta a 
praeside ; vel si non est praeses, puto quod poterunt rescindi per 
concilium majus civitatis... et net hoc ad petitionem cujuslibet de 
populo, condictione ex hac lege vel officio judicis." 



184 THE EMPIRE AND THE CIVITATES [CH. 

that the Decuriones cannot donate, can the whole 
people ? Yes, says Bartolus, since the people can pass 
a law to that end, at any rate in cities which are " sibi 
principes 1 ." 

From this Bartolus passes on to consider the 
limits within which the Decuriones may exercise their 
" arbitria." " Et consueverunt quandoque habere arbi- 
trium super bono et pacifico statu civitatis ; quandoque 
super abundantia habenda in civitate, quandoque super 
custodia civitatis, quandoque consueverunt habere 
arbitrium ut pecunia veniat in communi, et super 
multis aliis, quae factorum varietas introduxit 2 ." From 
which Bartolus deduces that, by virtue of such "arbi- 
trium," their authority is confined within the following 
limits 3 : — They cannot reinstate exiles, unless the right 

1 § 7 : " Posito quod decuriones ipsi non possint donare, ut dictum 
est: an populus totus possit donare? Puto quod sic, quod apparet: 
quia potest de donando legem facere...quod sine dubio procedit in 
illis civitatibus quae de facto in temporalibus non recognoscunt 
superiorem, et sic ipsi in se habent imperium." 

2 § 8. 

;! Vide §§ 8-16: " Sciendum est ergo quod ex virtute dicti arbitrii 
vel alicujus eorum non possunt rebannire exbannitos, nisi hoc sibi 
expresse permiserit populus, qui in civitate sua dicitur princeps.... 
Item non possunt aliquam sententiam condemnatoriam tollere....Item 
non possunt executionem alicujus sententiae suspend ere ultra terhpus 
trium mensium....Et sic apparet quod decuriones, qui quandoque 
suspendunt executionem sententiae in tempora prolixiora, non juri- 
dice faciunt; totus autem populus, qui in poenis a se impositis loco 
Principis habetur, possit hoc facere....Item non possunt ex virtute 
dicti arbitrii vel alicujus eorum mutare ordines et regimina civi- 
tatum....Nam arbitrium quod habent super bono et pacifico statu 
civitatis, intelligitur de praesenti....Praedicta vere nisi esset eis 
specialiter permissum. Item immobilia civitatum non possunt 
alienare, nisi specialiter hoc eis permittatur....Item ex vigore dicti 
arbitrii non possunt statuere aliquid, quod sit contra statuta et 
ordinem factum a toto populo, a quo ipsi auctoritatem habent, nisi 



II] THE EMPIRE AND THE CIVITATES 1S5 

is specially granted to them by the people. They can- 
not revoke a condemnatory sentence, nor suspend the 
execution of any sentence beyond three months, though 
the whole people can do so. They cannot alter the 
"ordines et regimina civitatum," for their "arbitrium 
super bono et pacifico statu civitatis " only applies " de 
praesenti " ; hence to make such alteration, special 
permission is necessary. They cannot pass any 
statute contrary to a statute or order of the whole 

de novo supervenisset causa, vel causa antiqua, quae esset de novo 
manifestata, quam tempore legis conditae populus ignorabat....Item 
ex virtute dicti arbitrii, vel alicujus eorum, non possunt facere statu- 
tum, per quod jus proprium jam quaesitum alicui auferatur; licet 
enim totus populus posset.... Et ideo ex virtute talis arbitrii non 
possunt (i.e. tbe decuriones) debitores aliquorum liberare vel similia 
facere. Sed juxta praedicta quaero, an clebitoribus possint dilationem 
concedere ex virtute alicujus arbitrii praedictorum. Eespondeo, non 
puto ultra tempus trium mensium vel ultra illud quod alias debitores 
habeant....Sed an possint judicibus civitatum auctoritatem tollere 
vel interdicere jurisdictionem super petitione dictorum debitorum, 
respondeo — si quidem judices praedicti non habent jurisdictionem 
ab ordine illo (i.e. the decuriones), sed magis a majori concilio, ipsi 
(i.e. the decuriones) non possunt jurisdictionem illam auferre. Si 
vero habent ab ordine illo, tunc auferre possent, cum ipse ordo 
remaneret judex.... Item an virtute alicujus arbitrii de praedictis 
possit novas gabellas et vectigalia imponere ? Et intelligo praedictam 
quaestionem, posito pro constanti quod civitas ipsa seu populus possit, 
prout de facto videmus facere, licet de jure non possit.... Eespondeo : 
si quidem in ilia civitate vectigalia et gabellae non sunt solitae im- 
poni, ordo eas imponere non potuit, nisi specialiter sit eis permissum. 
Hie enim est casus, qui reservatus est populo, qui in sua civitate 
imperium habet, seu obtinet vicem Principis, sicut reservatur Principi 
universali....Si vero civitas consuevit tempore necessitatis imponere 
gabellas, tunc imponere poterunt. Hoc enim potest venire in illo 
arbitrio, quod de more populi est.... Item an possit ex virtute alicujus 
arbitrii de praedictis institui nova guerra. Respondeo : potest pro 
defensione civium et suorum jurium. Alias autem pro recuperatione 
rerum perditarum ex intervallo, ut pro invadendo res alterius, non 
possent sine auctoritate populi vel majoris concilii." 



186 THE EMPIRE AND THE CIVITATES [CH. 

people, from whom they hold their authority, unless 
new circumstances have arisen, which were not present 
when the people originally passed their statute. Nor 
can the Decuriones take away by statute "jus proprium 
jam quaesitum alicui"; they cannot by statute liberate 
debtors, nor can they grant a " dilationem " to debtors 
beyond three months or whatever may be the customary 
period. Nor can they interpose between the Judices 
of the city and debtors, on petition of the latter, unless 
these Judices receive their jurisdiction from the order 
of Decuriones itself; since then, indirectly, the order is 
Judex. But if the Judices hold their jurisdiction from 
the "concilium majus," then the Decuriones cannot 
interfere. As to the right to impose " novas gabellas 
et vectigalia," if we grant that the people itself can de 
jure impose these taxes, as de facto they do, then 
whether the Decuriones can do so depends on custom. 
If they do not by custom, then they can only do so 
by special permission ; otherwise the right is reserved 
to the "populus sibi princeps." War may be waged 
by the Decuriones only in defence of the citizens and 
their rights; offensive war requires the authority of 
the whole people or the "concilium majus." 

Bartolus now propounds five general rules 1 : — 

(1) "Quod habentes arbitrium super aliquo 
possunt omnia facere quae principali ter spectant ad 
id super quo habent arbitrium." 

(2) " Quod possunt statuere et facere omnia 
antecedentia propter quae ad illud perveniri potest." 

(3) " Quod possunt statuere et facere omnia con- 
sequentia sinequibusillud commode explicarinon potest." 

3 Vide S 17. 



II] THE EMPIRE AND THE CIVITATES 187 

(4) " Quod non possunt aliquid facere vel statuere 
super eo, quod non spectat ad id super quo eis est 
concessum arbitrium." 

(5) " Quod non possunt aliquid facere vel statuere 
super eo, quod est accessorium alterius, quod non spectat 
ad id, super quo eis est concessum arbitrium." 

Bartolus now reduces these five general rules " ad 
practicam," giving examples of each, from which we 
may select the following : — 

(1) "Arbitrium super bono et pacifico statu 
civitatis " is given to the priors of Perugia. Therefore 
in virtue of such "arbitrium" they can compel "homines 
habentes insimul inimicitias " to keep the peace 1 . This 
" arbitrium super bono et pacifico statu civitatis " is 
very wide, Bartolus remarks, including " arbitrium " 
over "almost everything." However, we saw above 
that it only applies "de praesenti." 

(2) Those who have "arbitrium super abun- 
dantia " can decree that rustics need not attend 
personally in the city as witnesses for more than one 
day, and can serve " ad custodiam civitatis " through 
a substitute, that so agriculture may not be impeded 2 . 

1 "Datum est prioribus hujus civitatis arbitrium super bono et 
pacifico statu civitatis. Certe hujus vigore poterunt homines habentes 
insimul inimicitias cogere ad pacem....Scias ergo quod illud arbitrium 
super bono et pacifico statu est multum latum; comprehendit enim 
arbitrium super abundantia, super custodia, quasi super omnibus." 
Vide §§ 18, 19. 

2 ' ' Habentes arbitrium super abundantia volunt facere statutum 
quod rustici non possunt detineri in civitate pro testimonio ultra 
unam diem, vel quod rustici non cogantur personaliter venire ad 
custodiam civitatis, sed possunt servire per substitutum, adjecta 
causa, ut cultura agrorum non impediatur, et habeatur abundantia in 
civitate." Vide §§ 20-2. 



188 THE EMPIRE AND THE CIVITATES [CH. 

(3) " Ex hoc sequitur quod possunt terminos 
certos imponere ad implendum quod statuunt et 
mandant etc. 1 " 

(4) " Haec regula est clarissima," says Bartolus, 
and he gives no example 2 . 

(5) If those, who have "arbitrium ut pecunia 
veniat in civitate," decree a new offence and affix a 
penalty to it, " ut si quis opposuerit aliquatn excep- 
tionem, et non probaverit, puniatur in tantum," the 
decree is not valid, since the punishment is always 
" accessoria ad delictum 3 ." 

It is unnecessary for our purpose to carry the 
analysis further. 

The importance of this very democratic conception 
of the internal government of the Civitas is obviously 
greatest for the independent city, that is " sibi prin- 
ceps." Yet we must realise that Bartolus himself does 
not advance it as a theory applicable merely to the 
independent city. " Regimen ad populum " is, he 
considers, the best form of government for the city, 
" in primo gradu magnitudinis," and whether the 
city has a superior or not, is accidental. We saw 
above that Bartolus allowed any city, even one with 
no jurisdiction, to make statutes pertaining " ad ad- 
ministrationem rerum ipsius populi," without the 
authority of the superior, provided that they were 
not "ambitiosa decreta." So here, if there is a superior, 

1 Vide §§ 23-5. 2 Vide § 26. 

3 ' ' Habent arbitrium ut pecunia veniat in communi : ideo statuerunt 
aliquid esse delictum, cum prius non erat, et poenam imposuerunt ut 
si quis opposuerit aliquam exceptionem, et non probaverit, puniatur in 
tantum. Certe hoc non valet; nam poena semper et omni respectu 
est accessoria ad delictum." Vide 8 26. 



it] the empire and the civitates 189 

it is he who will rescind the " ambitiosa decreta " ; 
where there is no superior, the people will do so itself, 
since the people is " sibi princeps," is, if one can say so, 
its own superior. 

The whole trend of the political theories of Bartolus 
was in the direction of a separation of sovereign and 
non-sovereign bodies, but it is the goal, never the 
starting-point, of his theories. Just as the Civitas, 
whether independent or dependent, has, as a corporation, 
the right to legislate, while independence only widens 
the range within which its legislation is valid without 
the consent of a superior, so this democratic theory 
of the internal government of the city is not based 
upon the independence of the city, but upon the 
conception of the government, as a representation of 
the Universitas — and a representation rather of the 
whole people, of " omnes ut universi," than of a 
juristic "person," distinct from the sum of the indi- 
viduals who compose it 1 . 

In this connexion we must not pass over the treatise 
by Bartolus, De Guelphis et Gebellinis. It exhibits to 
the full his continual care for the actual problems 

1 Vide Gierke, Deutsche Genossenschaftsrecht, vol. in. p. 394, 
which must be considered in connection with what he has said, 
pp. 362-8, as to the Postglossators' conception of the personality of 
the corporation. Vide especially p. 366: "Das Eesultat war dass 
man die Idee der Fiktion festhielt, aber beziiglich des Inhalts dieser 
Fiktion unsicher und willkiirlich zwischen zwei einander wider- 
sprechenden Auffassungen schwankte, von denen man je nach 
Bediirfniss die eine oder die andere herauskehrte. Denn bald setzte 
man als Inhalt der Fiktion die Erzeugung eines krinstlichen In- 
dividuum tiber und neben einer Summe hiervon unberiihenden 
Individuen, bald fand man in ihr nur die Behandlung eine in 
Wahrheit vielheitlichen Gesammtheit als einer juristischen Einheit." 



190 THE EMPIRE AND THE CIVITATES [CH. 

of his day. No thinker was ever less doctrinaire. For, 
granted that the Populus was the origin of all power, 
was the State itself, the fact remained that in nearly 
every State the people was divided into two hostile 
parties, often each with a recognised organization of 
its own. It is this which gives point to the remark 
that, though the Concilium can come together un- 
summoned, its acts will only be valid so long as they 
are not to the prejudice of anyone not present 1 . Now 
in the Italian cities of the Middle Ages we may be 
pretty sure that there usually were " aliqui absentes." 
One party was usually triumphant at the complete 
expense of the other, triumphant in a sense that 
excluded the other party from all share in the public 
life of the city. With this in view Bartolus lays down 2 
that, in the passing of statutes, two " partes " must be 
summoned to the Adunantia or the Concilium, which 
represents the whole people, and that the decision rests 
with the majority. But what if one " pars " has ex- 
pelled the other? If the one "pars" is absent voluntarily, 
then " remanet tota potestas in praesentes." But if 
they have been expelled, then either they had, or had 
not, the "jus condendi statu ta," that is to say, they 
were " de concilio " or not ; in the case of a democracy, 
such as Bartolus considers best for the average city, of 
course they would be. If however they were not, and 

1 Vide Comment, on Codex, Tres libri (C. x. 31. 2), p. 37, § 3 : 
' ' Quaero quid si non apparet concilium convocatum ? Respondeo si 
quidem essent omnes praesentes, valeret concilium quando non est 
qui laeditur ex hoc convocati non sunt. Sed si aliqui essent absentes, 
tunc non valeret concilium; potuissent enim praesentia eorum ab- 
sentium trahere alios in suam sententiam." 

2 Comment, on Dig. Vet. (D. i. 1. 9), pp. 29-30, §§ 16, 17. 



II] THE EMPIRE AND THE CIVITATES 191 

therefore had no share in the "jus condendi statuta," 
their absence is immaterial. In the contrary case, 
when they were " de concilio," we have to consider 
if they were expelled " ex justa causa." If they were, 
again their absence is immaterial — "quia cum non 
obediant civitati suae, perdunt omnia jura propria 
civitatis," among which is the "jus condendi statuta." 
If they were not expelled "ex justa causa," then, though 
perhaps the statutes made by the one " pars " will bind 
that "pars," they cannot prejudice those who have been 
unjustly expelled 1 . 

Coming to the treatise 2 itself, Bartolus records 
the state of affairs at Todi, where, we remember, he 
had been Assessor. In Todi the government was 
divided equally between the two parties. Near Rome 
— " infra centesimum lapidem ab urbe Romana " — he 
realised that " ea quae literaliter scripta sunt de 
fiumine et alveo, allegorice et moraliter dici possunt 
de his quae in civitate Tudentina praecipue fre- 
quentantur. Nam tota nostra vita flumen seu aqua 
numinis est....Alveus vero super quem istae aquae 
decurrunt sunt ilia ad quae affectiones habemus....In 
ilia vero civitate Tudentina reperi duas affectiones ; 
quidam enim vocantur Guelphi, quidam Gebellini ; et 
ibidem in quolibet officio publico debebant esse tot de 
una affectione, quot de alia 3 ." The origin of these 
"affectiones" was the "magna discordia orta... inter 
Romanam Ecclesiam et Federicum, qui vocatus est Bar- 
barossa, tunc Romanorum Imperatorem." In Germany 

1 " Licet statuta facta per remanentes, serventur forte quantum ad 
eas...tamen in praej udicium expulsorum non possunt." 

2 pp. 414-17. 3 Proem. 



192 THE EMPIRE AND THE CIVITATES [CH. 

certain relatives of Frederick were named " domini de 
Gebello," and so, when the discord divided Italy, those 
siding with the Emperor were called " Gebellini, quasi 
adhaerentes illo domino de Gebello. Alii vero aclhae- 
serunt Ecclesiae et vocati sunt Guelphi, quasi zelatores 
fidei 1 ." 

Nowadays, however, these terms are applied quite 
apart from affection to the Empire or to the Church 2 ; 
and the rest of the treatise is occupied with con- 
sidering various problems arising from the existence 
of these two parties, illustrated, as is usual with 
Bartolus, by examples drawn from the city-life of 
Italy. Most important is the discussion as to the 
lawfulness of these factions, and whether it becomes an 
honourable man to belong to them. Shortly, they are 
lawful, so far as they tend to the " bonum publicum 3 " ; 
but it does not become an honourable man to assume 
the name of either faction "nisi ex magna causa 4 ." 

1 § 1. Bartolus continues by giving a fanciful " figura " of either 
party; of the Ghibellines from the Book of Kings — " ubi fuit con- 
liictus et occisus in monte gebello, qui interpretatur locus f ortitudinis " ; 
of the Guelphs from Genesis — " Guelpha interpretatur os loquens, ita 
Guelphi interpretantur confidentes orationibus et in divinis, etc." 

2 § 2: " Videmus enim quam plures, qui Guelphi vocantur, esse 
rebelles Ecclesiae et alios quam plures, qui Gebellini vocantur, esse 
rebelles Imperii : sed sicut contingit in provinciis et in civitatibus, in 
quibus sunt divisiones et partialitates, necesse est ut dictae partes 
aliquo nomine vocentur; ideo dicta nomina imponuntur tamquam 
magis communia etc." 

3 §§ 6-10. 

4 §§ 9-10: " Dico ergo quod assumere dicta nomina, licet signi- 
ficent divisionem et partialitatem, tamen si fiat ad justum et debitum 
finem, licitum est. Nam et Paulus Apostolus, sciens quod una pars 
esset Saduceorum, altera Phariseorum, exclamavit in concilio, Viri, 
fratres, ego Phariseus sum, filius Phariseorum. Multos tamen vidi 
Perusii cum contra tyrannos facerent seditionem, licet sancto et justo 



Il] THE EMPIRE AND THE CIVITATES 193 

Further, we have discussions of problems which neces- 
sarily arose with regard to the proof of adhesion to 
either faction. Thus, a man is a Guelph by birth, but 
becomes podesta or rector of a Ghibelline city — is he 
Guelph or Ghibelline x ? This was not merely an abstract 
legal riddle ; it was a very concrete communal problem. 
For example — "statutum est Pisis quod nullus Guelphus 
ad officium aliquod remittatur 2 ." Now suppose a Pisan 
becomes rector of the Guelph city of Perugia. Bartolus' 
answer is typically practical : he is a Guelph in Perugia, 
a Ghibelline in Pisa — " cum respectu diversorum potest 
quis esse diversarum affectionum 3 ." We take this as 
a sample, but the whole treatise illustrates the best 
qualities in the mind of Bartolus — its grasp of fact 
and its great good sense 4 . 

Finally, we may well quote here one other pas- 
sage 5 . "Valet," says Bartolus, "quod relinquitur parti 

zelo moverentur; quia praedicta nomina divisioneirt et scissuram 
important , puto quod honesto viro non deceat aliquod dictorum 
noniinum assumere, nisi ex magna causa." 
1 Vide § 16. 2 § 14. 

3 § 16 : " Sed si poneres unum Pisanum esse rectorem in civitate 
Perusii, cujus status Guelphus est, tamen non adversatur, sed ami- 
catur civitati Pisarum : tunc licet ille talis sit Guelphus Perusii ; non 
tamen per hoc dicitur Guelphus Pisis, nee statuto comprehenditur ; 
cum respectu diversorum potest quis esse diversarum affectionum." 
Bartolus considers the practice obtaining in some cities of having 
a book, in which the " affectio " of all the citizens is inscribed, 
" odiosum et contra equitatem." 

4 Vide also §§ 8-9, where he maintains that, though " partialitas " 
which aims at altering the form of government is unlawful, yet in the 
case of a tyranny it is lawful. For in this case it is " ad utilitatem 
publicam." "Pro hoc induco Thomam de Aquino...ubisicait,regnum 
tyrannicum non est justum." But such "partialitas " must not lead 
to a new tyranny or to a great injury to the state. 

5 Vide Comment, on Infort. Part n. (D. xxx. 1. 10), p. 27. 

W. 13 



194 THE EMPIRE AND THE CIVITATES [CH. 

civitatis hoc dicit. Lambertus de Ramponibus dicebat 
per istum textum quod pars expulsa de civitate potest 
facere syndicum....Cynus dicebat contrarium, quia col- 
legium est reprobatum eo ipso quod non est approbatum. 
...Credo dom. Lambert, dicere verum quod posset facere 
syndicum. Arguit pro hoc supra... ubi pars expulsa 
fecit leges, quae approbatae fuerunt. Arguit pro hoc, 
quia cuilibet est permissum facere collegium ad suam 
justitiam consequendam....Unde si faciunt syndicum 
ad compromittendum cum intrinsecis, ut pacem possint 
facere, valet. Et ita de facto observatur. Quaero, 
quid si legatur uni parti civitatis, ut sectae? Re- 
spondeo illud non valet, quia collegium est improba- 
tum, quoniam per sectas illas in damnum reipublicae 
contenditur....In quibusdam tamen civitatibus eorum 
statutis talia collegia approbantur, ut in civitate ista, 
ubi sunt capitanei partis Guelphae. Quaero; una 
pars est expulsa de civitate, pars quae remanet intus 
submittit civitatem alteri, et etiam pars quae est extra, 
quaelibet separatim : an valeat ? Arguendo dico videri 
quod non, quia debent conveniri insimul....Et hoc 
videtur sensisse Bonifacius Papa in quibusdam Uteris 
ad perpetuam rei memoriam concessis civibus Tuden- 
tinis, ubi jam ille casus occurrit." 

We see that the parties are considered as " collegia." 
This is important in two ways. In the first place, once 
recognise them as " collegia approbata," and as such you 
recognise their legality and internal independence — 
their right to have their own officers and to legislate 
for themselves 1 (inter se). Such recognition was 

1 Vide Comment, on Dig. Vet. Part i. (D. i. 1. 9), p. 27, § 6: 
' ' Collegia licita et approbata ' ' can make statutes ' ' in his in quibus 



Il] THE EMPIRE AND THE C1VITATES 195 

essential in the actual state of Italian politics. But 
secondly, if they are " collegia approbata," they must be 
formed " ad suam justitiam consequendam." If they 
are merely sects " ad damnum reipublicae," they are 
not licit. And so we see that, while the factions are 
recognised, they are recognised only so far as is 
consistent with the good of the whole State. The 
two parties are corporations, but parts of that larger 
corporation, which includes the whole people ; and thus 
even though both parties should agree separately to 
something detrimental to the interests of the whole 
State, as, for example, submitting it to another power, 
their act would not be valid. It would only be 
valid if done by the whole Universitas of the people, 
not by its two constituent parts separately, though in 
agreement. The factions are recognised 1 , but the 
" bonum publicum " is the limit of their lawfulness, 
(ii) We have now come to the last subject of inquiry 
in our attempt to reconstruct the political thought of 
Bartolus. We have traced the independence of the 
Civitas through various stages. We have noted, to 
begin with, the acknowledgment, which runs through- 
out his thought, that, right apart, the majority of 
Italian cities do not in fact obey the Emperor or 

habent jurisdictionem et quo ad ea quae ad ipsos collegiatos pertinent." 
So a part or quarter of a city can make s.tatutes, not " ad causarum 
decisionem," except with the consent of the whole people, but "ad 
modum expediendi ea quae incumbunt ipsi parti seu quarterio." 
Such a quarter is a "collegium approbatum," but " jurisdictio " 
resides only ' ' in toto populo vel concilio quod populum reprae- 
sentat." (§7.) 

1 In Comment, on Dig. Nov. Part n. (D. xlvii. 22. 4), p. 407, § 10, 
all " sectae et colligationes sunt prohibitae quae non fiunt super his, 
quae habent simul tractare." 

13—2 



196 THE EMPIRE AND THE CIVITATES [CH. 

regard him as their superior. We have then seen 
the independence of these cities confirmed in four 
important points — the applicability of the term Res- 
publica, the rights connected with the Fiscus, the 
exercise of Merum et Mixtum Imperium, and the 
right to make particular laws or statutes. Finally, 
we have seen such cities acknowledged to be, within 
their own limits, the Empire itself in miniature, to 
be " sibi principes." On the other hand, we must not 
forget the limitations to this independence. We have 
seen the Civitates, like the Regna and the clergy, 
retained within the Populus Romanus, and this was 
expressly done on the ground that they must, in spite 
of disobedience, acknowledge the Emperor as de jure 
"dominus omnium" — otherwise they would all be 
heretics. We can the better realise the possibility of 
this by remembering that the Empire is " universitas 
quaedam 1 ." It is a "universitas," embracing the world, 
but individual parts are also " universitates." So a 
particular "universitas" may be internally independent, 
while still necessarily a part of the " world- universitas," 
its whole; and this internal independence itself, grounded 
upon concession, prescription or usurpation, can be ac- 
cepted as a fact, without destroying the theoretical 
universality of the Empire. Now this reasoning may 
not be altogether and logically satisfactory; and the 
result is here and there an inconsistency, not so much 
perhaps in the thought, as in the diction, of Bartolus. 
Thus, as we have noticed, Bartolus will occasionally 

1 Vide above, p. 22: "Mundus est universitas quaedam; unde 
potest quis habere dictam universitatem, licet singulae res non sint 
suae." 



II] THE EMPIRE AND THE CIVITATES 197 

talk of cities which are de jure not "sub imperio 1 ." 
But that is exceptional, and it is of the utmost im- 
portance to realise that, generally and regularly, Bartolus 
is conceding independence rather of the Emperor, than 
of the Empire. 

In truth the Empire, if not the Emperor, was 
still necessary. The conception of the " Civitas sibi 
princeps " provided for the internal independence of 
the State and made possible its acceptance of Roman 
Law without the conclusion that it was accepting the 
law of the Emperor. But this still left problems un- 
touched. In the first place, though the city might 
be "sibi princeps," it could not make laws that had 
any force outside the limits of the city. The universal 
Emperor alone could make general laws ; all other 
legislating powers could only make particular laws or 
statutes. The chance of the Emperor actually making- 
new laws was, indeed, remote ; but there can be no doubt 
that Bartolus, who commented on the two constitutions 
of Henry VII, in honour of Charles IV and his grand- 
father, would have had no hesitation in accepting laws 
from Charles IV, and placing them duly in the Corpus 
Juris ; for though the Code was a closed book since 
Accursius, the Authenticum was always open 2 . That, 

1 Vide above, p. 122, notes 1 and 2. 

2 Vide Comment, on Const. Ad Keprimendum (sup. rubric), p. 261 : 
' ' Et advertendum est quod liber Authenticorum divisus est in novem 
collationes. Postea supervenerunt liber Feudorum quae decimam 
collationem vocamus. Postea supervenerunt istae constitutiones quas 
undecimam collationem appello, ipsasque glossare voiui ego, Bartolus 
de Saxoferrato, eivis Perusinus, ut multa utilia quae in eis sunt 
omnibus innotescerent, et etiam ad laudem divinae recordationis 
domini Henrici Imperatoris, ipsarum constitutionum authoris, avi 
illustrissimi domini d. CarolilV Imperatoris nunc regnantis, cui debito 



198 THE EMPIRE AND THE CIVITATES [CH. 

however, was a remote possibility. The main problem 
was, granted the internally "imperial" authority of 
the city (as expressed in the phrase "sibi princeps"), 
and externally the non-recognition of the Emperor as 
superior, what was to take the place of the Emperor, 
as superior, in the inter-communal relations of one 
city with another ? Here, therefore, came in the im- 
portance of the conception of the Empire as a "world- 
universitas," and the conception of the law of the Corpus 
Juris — Common and Imperial Law — as the general law 
of that whole "universitas." The Emperor might not 
be recognised, but the Empire remained. The cities, 
internally independent, were externally connected to- 
gether into one all-embracing body. When the Emperor 
was no longer recognised as superior, his place was taken 
by Law. 

Bartolus, we must repeat again, has not given up 
the de jure universal lordship of the Emperor over all 
those " gentes " who form the Populus Romanus, and 
therefore, whether that lordship be interpreted as a 
universal jurisdiction or a universal " regularitas," it 
follows that de jure there can be properly no inter- 
national relationships within the Populus Romanus. 
If we now refer back to the distinction between the 
Populus Romanus and the Populi extranei, we see that 
Bartolus makes this distinction when considering the 
question of war 1 . Can the Civitates declare war upon 
each other ? Can the Civitas have its " hostes " and 

fidelitatis adstringor : quia me suorum consiliariorum et domesticorum 
numero aggregavit, et me meosque posteros quos legum doctores esse 
contingerat legitimationis et cessionis veniae aetatis aliisque privilegiis 
et gratiis decoravit." 

1 Comment, on Big. Nov. Part n. (D. xlix. 15. 24), pp. 637-9. 



Il] THE EMPIRE AND THE CIVITATES 199 

do the "jura captivitatis et postliminii" hold good in 
such wars ? 

Of course — the contrary would be very surprising in 
view of our previous inquiries — Bartolus fully allows 
these rights to the independent Civitas. "Nota quod 
ille qui praeparat exercitum sine jussu superioris, in- 
cidit in legem Juliam Majestatis. Sed hodie civitates 
Italiae possunt licit e praeparare exercitum contra sub- 
ditos et inimicos suos, cum dominum non recognoscant 1 ." 
But, properly, public war is between the Populus Roma- 
nus and those of the Populi extranei with whom it is 
not in friendship or alliance — notably with the Turks 
and Saracens 2 — or else such as is waged by the Emperor 
on his rebellious subjects. In these wars the "jura 
captivitatis et postliminii" hold good beyond all question. 
"Puto," says Bartolus, "quod civitates Italiae, contra 
quas Imperator induxit bellum, ut contra civitatem 
Florentiae et similes, sunt vere hostes Imperii: et capti 
efficiuntur servi," etc. 3 It is only if we put aside 
all doubt that, where there is "contentio inter duas 
civitates, quae superiorem non recognoscunt, ut inter 
civitatem Florentiae et civitatem Pisanam," these cities 
are not rebels against the Empire — "pone ut tollem 
omnem dubitationem, quod quaelibet istarum sit hostes 
Imperii" — that we can allow the right of war between 
them 4 . 

1 Vide Comment, on Big. Nov. Part n. (D. xlviii. 4. 3), p. 459. 

2 Bartolus distinguishes those, like the Tartars, "with whom we 
have peace," those, like the Indians, with whom we have no dealings, 
and those like the Turks and Saracens, with whom we have "guerram 
indictam." The "we" shows how vividly Bartolus conceives himself 
and his hearers, or readers, as members of the Populus Romanus. 

3 § 14. 

4 He adds that the right is not used ' ' hodie ' ' among Christians. Cf . 



200 THE EMPIRE AND THE CIVITATES [CH. 

What this really amounts to is that Bartolus allows 
war between the de facto independent Civitates within 
the Populus Romanus, and this is further illustrated 
by his treatment of the "banniti." The "bannitus" 
is "transfuga et hostis" of the city from which he is 
banished, and, as such, loses his city and all his rights 
as a citizen — or rather all those which "faciunt pro se." 
But he does not cease to be a member of the Populus 
Romanus or Roman Empire, and retains all the "jura 
civitatis Romanae," just as the "bannitus" of the 
Empire itself retains the "jura gentium 1 ." 

Comment, on Dig. Nov. (D. xlvii. 22. 4), p. 409, §§ 10-11, where con- 
federacies are allowed, though properly illegal, between independent 
cities and other powers. "...Omnia alia collegia et omnes aliae sectae 
et colligationes sunt prohibitae....Item istae ligae quae fiunt inter 
civitates et principes et barones non valent....Nec obstat L. Non 
dubito, infra, De cap. et postlimin., ubi dicitur quod civitates in- 
vicem foederantur et colligantur : quia istud est verum, quando 
civitates aliae non amicae, vel liberae, foederantur populo Romano 
habenti imperium : sed plures civitates, vel plures barones, qui 
essent sub uno rege, domino vel principe, non possunt invicem 
facere illam foederationem. Ista enim sunt sodalitia et collegia 
prohibita....Et ex istis colligitur, quod civitates Tusciae quae non 
recognoscunt de facto in temporalibus superiorem, possunt invicem 
simul foederari tanquam liberae. Sed plura castra vel villae, quae 
essent sub una civitate vel uno domino, hocnonpossent, ut dictum est." 
1 Vide Quaestio i. § 20, p. 205: " Restat videre quae perdat talis 
exbannitus propter tale exbannitamentum : ad quod respondeo, vos 
debitis scire quod transfuga et hostis civitatis Romanae perdit civi- 
tatem Romanam et omnia jura civitatis Romanae; retinet tantum 
jura gentium... hoc verum, scilicet quod perdit jura civitatis Romanae, 
in quantum respicit suum commodum : sed in quantum respicit suum 
incommodum, ipsius jura civitatis Romanae eum ligant apud nos.... 
Et ita dico de tali exbannito ; nam cum ipse sit transfuga et hostis 
illius civitatis unde exbannitus est... dico quod per exbannitamentum 
perdit illam suam civitatem et omnia jura propria civitatis illius, 
unde exbannitus est, prout faciunt pro se....Jura vero gentium et jura 
communia civitatis Romanae seu Romani imperii non perdit, nam 



II] THE EMPIRE AND THE CIVITATES 201 

The basis upon which Bartolus rests his whole 
scheme of international relations is the unity of at 
least western Christendom in the Populus Romanus or 
Roman Empire, even though the effective superiority 
of the Emperor over the whole Empire is de facto 
wanting. The "jura civitatis Romanae " remain the 
"jura communia." We see at once that we are still 
far from the beginnings of modern International Law. 
Bartolus certainly leads up to Albericus Gentilis and 
Grotius, but his world is the Roman Empire, where- 
as the world of modern international law is a world 
of independent, sovereign States, "a society bound 
together by a natural law, which makes promises 
binding 1 ." Now Bartolus has recognised, as we have 
seen, the existence of these higher laws above all 
merely human laws, including the "jus commune," and 
even allows the "bannitus Imperii" to retain the "jura 
gentium 2 ." But Grotius 3 was quite correct when he said 
of the medieval civilians (the second class of the three 
into which he divides the "juris Romani scientiam 
profitentes") — that "juris divini et historiae veteris 

non est transfuga totius Imperii, sed illius civitatis tantum." Cf. 
Tract. Bannitorum, § 10, p. 356, and Comment, on Dig. Vet. Part i. 
(D. iv. 5. 5, § Qui deficiunt), p. 454. In Comment, on Infort. Part i. 
(D. xxviii. 1. 8, § Si, p. 260), the Bannitus from a Civitas loses the 
power of making a will according to the "jura" of his Civitas, not 
according to the Jus Commune. 

1 Vide Figgis, From Gerson to Grotius, p. 212. 

2 Not, however, in his Tract. Bannitorum, § 10, p. 356: " Debetis 
scire quod transfugae et hostes populi Eomani ultra alias civitates 
perdunt civitatem Eomanam et omnia jura gentium..... Jura autem 
gentium, item jura communia civitatis Komanae sunt Imperii 
Eomani." He allows it, however, in the other passages, to which 
we have referred above. 

3 De Jure Belli et Pads, Prolegomena. 



202 THE EMPIRE AND THE CIVITATES [CH. 

incuriosa (i.e. this class), omnes regum populorumque 
controversias definire voluit ex legibus Romanis, as- 
sumtis interdum canonibus." Bartolus may say that the 
" bannitus " cannot lose the right of self-defence, which 
is " de jure naturali 1 ," or may say that reprisals are "de 
jure gentium 2 ,'' but for him the really international 
law is still the Roman "jus commune." We have to 
remember that here, as elsewhere, Bartolus is writing 
with his eyes fixed on Italy. Had he carried his dis- 
tinction between the Populus Romanus and the Populi 
extranei into other topics besides that of war, he would 
have had to base his thought upon a higher law than 
the "jus commune 3 ." But his world is the Populus 
Romanus or Roman Empire. So long as the de jure 
unity of western Europe in the one Roman Empire was 
maintained, the medieval Italian lawyer, who lived in 

1 Vide Comment, on Infort. Part i. (D. xxiv. 3. 49), p. 81 : " Quaero 
de una quaestioiie, quam disputavit Jac. Buttrigarius. Pone quod 
statuto cavetur quod bannitus non audiatur, nee in agendo, nee in 
defendendo....Sed videndum est an dictum statutum valeat, scilicet 
quod non audiatur nee in agendo, nee in defendendo. Certe non, 
quia leges debent esse justae, et defensio est juris naturalis, quod non 
potest tolli." 

2 Vide below, p. 206. 

3 Vide a very interesting passage in the Comment, on Codex, Part I. 
(C. i. 11. 6), p. 84, in which we see that Bartolus feels the need for 
a legal ground of war, even against the Populi extranei : ' ' Ista est 
bona lex....Nota quod Judaeis vel Paganis nulla potest fieri violentia. 
Dices tu, qualiter Ecclesia indicit bellum contra Saracenos ? ' ' Because 
they keep " terram nostram," promised to the seed of Abraham, " et 
debita nobis, quia sumus filii Abrahae secundum Apostolum." But 
why, he asks, against the Turks, "qui non tenent terram nostram 
indicit Ecclesia bellum ? Kespondeo : quia non possumus aliter ire ad 
Saracenos. Cum ergo contendunt turbulentum et juri contrarium, 
quia non permittunt nos ire ad illos (i.e. the Saracens), ideo Ecclesia 
indicit eis bellum, alias non indiceret." 



II] THE EMPIRE AND THE CIV1TATES 203 

conditions where Roman Law was actually a common 
law above the conflicting statutes of Italian cities, 
naturally went to that common law for rules to guide 
international relations, which were at best de facto. 
De jure the Emperor was universal superior, above the 
conflicting interests of particular parties; when men 
had given up the de jure unity of Europe under a 
universal Empire, and moreover when they turned 
their attention from inter-communal to properly inter- 
national problems, a wider and higher basis than the 
Roman "jus commune" had to be found for Inter- 
national Law. 

To illustrate Bartolus' attitude we may now turn to 
one of his most interesting treatises — the Tractatus 
Repraesaliarum : its opening words express his attitude 
so exactly that we shall do well to quote them in full. 

"Repraesaliarum materia," he says, "nee frequens 
nee quotidiana erat tempore quo in statu debito Roma- 
num vigebat Imperium; ad ipsam nam, tanquam ad 
summum monarcham, habebatur regressus, et ideo hanc 
materiam legum doctores et antiqui juris interpretes 
minime pertractaverunt. Postea vero peccata nostra 
meruerunt quod Romanum Imperium prostratum j ace- 
ret per multa tempora, et reges et principes ac etiam 
civitates, maxime in Italia, saltern de facto in tempo - 
ralibus dominum non agnoscerent, propter quod de 
injustitiis ad superiorem non potest haberi regressus, 
coeperunt repraesalia frequentari, et sic effecta est 
frequens et quotidiana materia. Ego itaque, Bartolus 
de Saxoferrato, civis Perusinus, minimus legum doctor, 
cum speculationibus ad jus civile spectantibus operam 
dans ad communem utilitatem et maxime universalis 



204 THE EMPIRE AND THE CIVITATES [CH. 

studii Perusini super ista materia libellum composui 1 ." 
We see how very clearly Bartolus realised that, the 
superiority of the Emperor being no longer recognised, 
and the Roman Empire lying prostrate, new problems 
had arisen which had to be faced, as new problems, 
because they were not present to the lawyers of former 
ages. Is it really true to say, in view of passages like 
this, that the civilians were ignorant "that the world 
had outgrown the Imperial conception 2 "? 

Bartolus treats the subject of reprisals in a very 
wide sense, as being often equivalent to war; in fact 
"concedere repraesalias est indicere bellum 3 ." Hence 
since "bellum justum non potest indicere nisi ille qui 
superiorem non habet," the grantor of the reprisals 
must be one who owns no superior; while he, against 
whom the reprisals are granted, must be de facto not 
amenable to the "superioris copia 4 ." This is at the 
root of his whole treatment of the question — the "su- 
perioris copia" is wanting. " Imperator est modo in 
Alemannia et de jure est superior, tamen de facto in 
partibus istis ei non paretur 5 ." The cities themselves 
must take his place. But then, remembering that 

1 Tract. Repraesaliarum, Proem, p. 327. 

2 Lane Poole, Illustrations to the History of Medieval Pol. Thought, 
p. 246. 

3 Tract. Repraesaliarum, Quaestio in. 2, § 3, p. 331. 4 Ibid. 
5 Ibid. Quaestio n. 5, § 12, p. 331. Bartolus gives other examples 

how the " copia superioris " may be wanting: " Pone, in Marchia est 
rector pro sancta matre Ecclesia, tamen de facto nil potest propter 
occupationem tyrannorum." He then proceeds to consider how far a 
tyrant himself may be considered superior. If he made himself tyrant, 
he is not to be considered superior. But if he was " electus ab haben- 
tibus potestatem facere," then, even though he was elected "per 
vim vel metum," if it is not notorious, " sed pro vero domino se gerit 
et sic reputatur communiter," he is to be considered superior. 



II] THE EMPIRE AND THE CIVITATES 205 

Bartolus has a very democratic theory of the source of 
authority in these cities, we realise that it is the "sove- 
reign" people, not the government, who will grant re- 
prisals, unless the power of so doing is specially granted 
the government by statute 1 . 

Reprisals to be lawful require two necessary con- 
ditions — the authority of the superior, whoever the 
superior be, and a just cause 2 . Where the city is its 
own superior, its power is carefully restricted. "Par in 
parem non habet imperium et (quia) non potest extra 
territorium statuere quae sunt jurisdictionis alterius 
et non suae, ut dicunt jura vulgaria 3 ." It can only 

1 Ibid. Quaestio in. 2, § 4, p. 331: "Si est aliqua civitas quae 
solum de facto non cognoscit superiorem et regitur per populum 
secundum suos ordines et statuta, quod potestas et rector illius 
civitatis non posset concedere repraesalias, nisi eis specialiter aliquo 
statuto esset permissum. Deberet ergo adiri pro repraesaliis ipse 
populus vel ordo, apud quern est omnis communis potestas, et hoc 
puto verum." 

2 Ibid. Quaestio i. 2, § 4: " Doctores omnes communiter in 
sententiam istam inclinant quod si quidem contra ilium hominem 
vel populum, qui justitiam facere et debitum reddere negligit, potest 
haberi recursus ad superiorem, tunc repraesaliae sunt licitae duobus 
intervenientibus. Primo requiritur superioris auctoritas ; non enim 
licet alicui sua auctoritate jus sibi dicere....Secundo quod superioris 
auctoritas interponat sibi ex justa causa." 

3 Ibid. Quaestio i. 3, §§ 8-10. Vide especially § 10: "Si vero 
statuta fiant in una civitate contra aliam terram liberam circa reprae- 
salias concedendas, tunc advertendum quia in causis concedendarum 
repraesaliarum vertitur justitia facta seu justitia denegata a terra 
contra quam repraesaliae conceduntur; et circa hoc non possunt fieri. 
Non enim una civitas potest facere legem super alteram, quia par in 
parem non habet imperium, et quia non potest extra territorium suum 
statuere quae sunt jurisdictionis alterius et non suae, ut dicunt jura 
vulgaria. Secundo vertitur in causa si superioris copia haberi non 
potest ; et circa hoc similiter non potest fieri statutum : puta, si 
statutum diceret quod repraesaliae concedantur, nee teneatur quis 
ire ad superiorem.... Tertio vertitur in causa superioris auctoritatis, 



206 THE EMPIRE AND THE CIVITATES [CH. 

legislate on its own part in the reprisals, on its own 
part as the superior who grants the reprisals, not 
as the superior to whom recourse is to be had for 
justice before reprisals be granted 1 . For reprisals are 
not to be granted lightly. They are an odious and 
extraordinary expedient 2 . Elsewhere Bartolus doubts 
whether the right to grant reprisals is really to be 
drawn from Civil or Canon Law, and not rather from 
Divine Law or the Law of Nations, according to which 
war is lawful. But then, according to the Law of 
Nations, "non erat actio neque istae formulae agendi, 
sed omnia expediebantur manu regia"; and so to-day, 
he adds, when reprisals "postulantur de jure com- 
muni," it is rather the "manus regia seu potestas regia," 
than the "officium judicis," which is required 3 . 

scilicet auctoritas ipsius civitatis concedentis repraesalias, et tunc 
circa hoc potest facere statutum, an in talibus casibus praedictis 
concedatur et quo ordine. Nam cum ista causa et ista instantia sit 
sua, potest circa hoc statuere, cum quaelibet civitas statuta facere 
circa ordinationem, quae in foro ejus agitur, possit." In §§ 8 and 9 
he considers the case of statutes against subject towns or villages and 
cities " quae submittunt se protectioni civitatis certis pactis." Against 
the former the city can legislate as it will, but not against the latter, 
which are its equals. In §§ 11-14 he considers whether such statutes 
' ' circa repraesalias ' ' passed against ' ' subditos ' ' can be enforced 
"extra territorium." 

1 Tract. Repraesaliarum, Quaestio n. 1. §§ 1-3, 2. § 8 and 3. § 9, 
pp. 329-30. 

2 Ibid. Quaestio n. 4, § 11, p. 330. 

3 Ibid. Quaestio in. 1. §§ 1-2, p. 331: "Ad primum quaeritur quo 
jure adeatur quis ut repraesalias concedat. Eespondeo si quidem per 
statuta terrarum vel constitutiones dominorum aliquibus est concessa 
potestas, et tunc judex adhibetur conditione ex illo statuto vel constitu- 
tione, vel judicis officium implorabitur secundum quod ex illo statuto 
vel constitutione praecipitur....Qualiter autem circa hoc statutum 
factum est, probabiliter illud ignoro....Si vero quaerimus de jure 
communi, tunc advertendum quod de istis repraesaliis concedendis 



Il] THE EMPIRE AND THE CIVITATES 207 

That is to say, reprisals are not "de jure communi," 
for "de jure communi" there is a superior, to whom 
recourse may be had. None the less it is to the "jus 
commune," and in less degree to the Canons, that 
Bartolus turns, to establish the orderly working of 
reprisals between the Italian cities. Bartolus, of course, 
nowhere lays down an abstract rule that, the effective 
power of the Emperor being gone, all cases of conflict 
are to be settled by the "jus commune " ; indeed the 
conditions which made those rules necessary are recog- 
nised as being rather de facto than de jure. But 
seeing that the superiority of the Emperor was de 
facto gone, he did actually turn to the Law Books and 
the Canons in order to find rules which might regulate 
the relations of the cities, one with the other — a work 
made necessary, as he says himself in the opening of 
this treatise, for no other reason than that the "copia 
superioris," now that the Roman Empire lay prostrate, 
was gone 1 . 

nulla juris civilis constitutione cautum est; et rationes et jura quae 
ad hoc cogunt sunt magis de jure divino et de jure gentium, quo bella 
licite permittuntur, quam de jure civili....Sed illo jure gentium non 
erat actio neque istae formulae agendi; sed omnia expediebantur 
manu regia....Unde dico quod etiam hodie, ubi ex causa repraesaliae 
postulantur de jure communi, non debetur intentari actio vel officium 
judicis implorari, sed magis debet requiri manus regia seu potestas 
regia secundum instituta juris divini et gentium, quod a jure civili 
non est immutandum." Cf. Quaestio i. 2. § 5: "...mihi videtur quod 
jus concedendi repraesalias non jure civili vel canonico sit inductum, 
sed magis jure divino...et gentium." 

1 In conclusion it is worth pointing out that the granting of 
reprisals is further limited by a long list of persons against whom 
they are not to be granted, inter alios the persons of women, clerics, 
scholars or their servants or parents visiting them, ambassadors and 
those going to fairs. Vide Quaestio vi. 6. In certain circumstances, 
however, exceptions are made. 



CHAPTER III 

THE PROBLEM OF THE EMPIRE 

Bartolus, we may repeat, has himself given us 
no political system. His legal commentaries provide 
us with the disjecta membra of a system, but it is 
we who have had to construct it. We ourselves have 
had to choose and group the topics of our inquiry. In 
our choice of topics we have tried to be as complete, 
and therefore as unarbitrary, as possible; in the grouping 
of these topics we have purposely chosen the Empire as 
the centre of our inquiries. The present chapter must 
attempt to justify our choice. 

Yet, to some extent, our justification has already 
been given in past pages of this essay. The Empire, 
as we have seen, was for the medieval civilian the 
starting-point of his political thought — the " funda- 
mentum totius juris nostri." From the Law Books, 
literally interpreted, the Glossators derived a single 
universal State, the Roman Empire, which, by Justinian's 
day, had become conterminous with Christendom. Only 
beyond the hazy borders of the Christian- Roman world 
could other States exist. Then, when the Glossators 
were succeeded by the Postglossators, there took place 



Ill] THE PROBLEM OF THE EMPIRE 209 

a change of method and of aim, but there was no 
break in the tradition. The Postglossators might be 
concerned rather to submit law to fact than, as the 
Glossators, fact to law — but for them, no less than for 
the Glossators, the Empire was still the State. If they 
finally succeeded in confirming the existence of States, 
it was only as a result of a long, difficult and somewhat 
reluctantly undertaken process. 

The problem of accommodating theory to facts faced 
the political thinker and the publicist no less than the 
lawyer. So long as the Hohenstaufen Empire had been 
in existence, the theory of the universal Roman Empire, 
as still existing with all its pristine authority and 
claims, received at any rate some countenance from 
the political ideals and aims of the Hohenstaufen 
Emperors, if not from their actual power. The Roman 
Empire that had existed in western Europe since 
Charlemagne's day, though Roman in name and theo- 
retically but the continuation of the old Roman Empire, 
had in fact been a German Empire, ruling Italy from 
Germany and, in great part, by Germans 1 . The 
Hohenstaufen attempted to make their Empire Roman 
in fact as well as in name. They have often been 
blamed for sacrificing Germany to Italy, or the Empire 2 
— and blamed unjustly. " To to regni sui tempore nihil 
unquam duxit melius, nihil j ucundius, quam ut imperium 

1 Vide Krammer, Die Reichsgedanke des staujischen Kaiserhaus, 
pp. 1 and ft'. 

2 Vide e.g. Blondel, Etude sur la politique de V Empereur Frederic, 
II. etc. p. 376: "On a eu bien raison de dire qu'il est un empereur 
romain beaucoup plus qu'un empereur allemand et que sa politique 
vis-a-vis du pays de ses ancetres ressemble a une politique d'abdication 
ou de mepris." 

W. 14 



210 THE PROBLEM OF THE EMPIRE [CH. 

urbis Romae sua opera suoque labore pristina polleret 
et vigeret auctoritate," says Ragewin of Frederick I 1 . 
It is the keynote of the Hohenstaufen policy. Their 
policy, their whole political outlook was shaped by 
reminiscence of the old Empire ; the German king was 
necessarily swallowed up in the Roman Emperor. Thus 
the theories of the civilians and the ideals of the 
Hohenstaufen met; and they met not because the 
medieval civilians were all Imperialists, but because 
the common foundation of the theories of the lawyer 
and of the ideals of the Emperor was to be found in 
Justinian's Corpus Juris 2 . 

Thus, when the Hohenstaufen fell, the future of 
the Empire, alike in theory and in fact, was a problem 
demanding instant solution. In Bartolus we have had 
the solution of this problem as offered by the greatest 
of the Postglossators — we note how the great Gloss of 
Accursius, which ends the period of the Glossators, 
roughly corresponds in point of time with the fall of the 
Hohenstaufen Empire. We are now to turn to other 
thinkers and compare their solutions with that of 
Bartolus. 

The reality of this problem is apt to be obscured 
by the overshadowing position occupied by what was, 
no doubt, the political problem, alike of the early and 
of the later Middle Ages — the relations of the temporal 
and the spiritual powers. It has been maintained that 
" only one great question came into prominence in the 
thirteenth and fourteenth centuries and drew to itself 

1 Lib. iv. c. 86, p. 276 ; Pomtow, Ueber dem Einfluss der altromischen 
Vorstellungen vom Staat auf die Politik Kaiser Friedrichs I. etc. pp. 1-3. 

2 Vide the very interesting dissertation of Pomtow, referred to in 
the preceding note, especially pp. 19-29, 53-61. 



Ill] THE PROBLEM OF THE EMPIRE 211 

whatever power or interest men's minds had in the 
theoretical treatment of affairs of state 1 ." Now that 
the controversy between the temporal and spiritual 
powers was not the only important controversy of these 
centuries, the following pages must attempt to show ; 
we shall see that the problem of the Empire's future 
can exist independently of the controversy between the 
two powers, and that, in other cases, it affects in more 
ways than one the solutions offered in this great con- 
troversy itself. And even the past pages of this essay 
may perhaps pretend to throw doubt upon this statement. 
If it be true, how are we to account for the fact that 
Bartolus was able so openly to trifle with this very 
controversy, and devote his political thought, in all its 
most valuable aspects, wholly to topics in which the 
spiritual power does not enter ? Obviously, only by 
supposing, either that Bartolus was quite out of touch 
with the contemporary thought of his time, or that, 
as a political thinker, he is negligible. We borrow 
words of Bartolus — haec solutio non multum placet. 

In this chapter, therefore, we shall again have the 
Empire as the centre of our inquiries. Nor must we 
presume that the period, which lies before us, had any 
single or simple theory of the Empire ; that, for example, 
taken as a whole, it had any axiomatic belief in the 
divine nature or the necessity of the Koman Empire. 
We shall find it much concerned to know what the 
Empire had been, what it was, and was to be ; we shall 
find the theories of each individual thinker coloured by 
conditions of which account must be taken in each 
individual case — his nationality, the material on which 
1 Vide Pollock, History of the Science of Politics, pp. 33-4. 

14—2 



212 THE ■PROBLEM OF THE EMPIRE [CH. 

his thought is based and his intellectual environment 
generally. 

But before we turn to the political literature of the 
new period, we must briefly consider the political con- 
ditions under which it opens. This we may most 
conveniently do under three heads. The struggle 
between the Hohenstaufen and the Papacy, each with 
its rival political theories, was in general a struggle 
for supremacy in Christendom. But in particular it 
was a struggle for supremacy in Italy. However wide 
the Papal claim to universal obedience might be, its 
special claim over Rome itself and central Italy was 
never forgotten. Marriage had brought the Hohen- 
staufen the possession of southern Italy; as Emperors 
they demanded the subjection of northern Italy. We 
must see, then, what problems the fall of the Hohen- 
staufen presented for solution : (1) in southern Italy, 
(2) in northern Italy, (3) in western Europe generally. 

(1) The N.orman power in southern Italy had been 
regarded since the Investiture struggle as the chief 
support of the Papacy in Italian politics. The kingdom 
of Sicily was considered a fief feudally dependent upon 
the Popes. The acquisition of this power by its most 
dangerous enemy — dangerous in particular from its 
claims over northern Italy and even over Rome itself — 
threatened the very existence of the Papacy, as a 
political power. Therefore the Papacy's first step, after 
the fall of the Hohenstaufen, was to provide itself, as of 
old, with a defender in south Italy. Such a defender 
was a pressing necessity while Frederick's descendants, 
and especially Manfred, were alive ; for they were the 
heirs of Frederick, of his policy and his claims. And 



Ill] THE PROBLEM OF THE EMPIRE 213 

such an ally was found, after fruitless negotiations with 
England, in Charles of Anjou, the brother of S. Lewis 
of France. The problem still remained to keep this 
ally obedient to the Pope, and yet powerful enough to 
protect him. The problem, in the old days of the 
Normans, had not always been easy to solve. It would 
be no easier now. The Normans had been a strong, 
but isolated, power. Charles was a French prince, 
and France, since the fall of the Hohenstaufen, was, 
beyond dispute, the strongest monarchy in Europe. 

(2) It was by utilising the resolution of the majority 
of the north Italian cities not to submit to any real 
acknowledgment of the Imperial claims to their obedi- 
ence, that the Papacy was able to secure its victory 
over the Hohenstaufen. Consequently its object must 
now be to keep southern and northern Italy apart, and 
to build up a strong Papal state between the two. This 
was not easily done. The hold of the Popes over Rome 
itself was by no means secure. Urban IV made serious 
efforts to prevent the election of Charles of Anjou as 
Senator. None the less he was compelled to give way, 
fearing that, if not Charles, Peter of Aragon, Manfred's 
son-in-law, would be elected. The history of Charles' 
Senatorship is very instructive. The Popes were driven 
to accept him, because only through him could they keep 
a hold on Rome and exclude their direct enemies. At 
the same time they saw well enough that the Senator- 
ship, combined with the kingdom of Sicily, was on the 
high road to making Charles the real master of Italy 1 . 

1 On this subject vide Gregorovius, History of the City of Rome in 
the Middle Ayes, vol. v. Part 2, pp. 349-53, 368-71, 401-2, 423, 447- 
9, 483-502. 



214 THE PROBLEM OF THE EMPIRE [CH. 

The death of Manfred relieved the Papacy from a 
pressing danger, but did not weaken the domination of 
Charles. Though he was now bound by an oath never 
to unite his Sicilian crown to that of Germany, or to 
the Empire, or to the " dominium " of Lombardy and 
Tuscany 1 , he was none the less in 1268 appointed by the 
Pope Imperial vicar in Tuscany. The fall of Charles 
from his great position in Italy came from an unex- 
pected quarter, some fourteen years later, with the 
Sicilian Vespers. But already the election of Rudolf 
of Habsburg to the Empire had considerably changed 
the political conditions of Europe. 

(3) The end of the long Interregnum, which had 
lasted since Frederick II's death — or, in the eyes of his 
enemies, his deposition — came when Gregory X bade 
the electors proceed at once to the election of a suitable 
king of the Romans, with the threat that, did they 
not do so, he would himself nominate one. Gregory 
doubtless thought that he had found in Rudolf the 
solution of many problems. The great object of his 
reign was the re-opening of the Crusades, and to that 
end he wanted Europe at peace under its traditional 
leaders, an Emperor and a Pope. Gregory, unlike his 
two immediate predecessors, was an Italian. Up till 
now one has rarely had to consider the nationality of 
individual Popes. The German nationality of those 
Popes whom Henry III had given to the Church was, 
indeed, a factor not to be disregarded. Bonizo of Sutri, 
the partisan of Gregory VII, thought the election of 
the German Clement II a necessity, but contrary to 

1 Vide below, p. 218. 



Ill] THE PROBLEM OF THE EMPIRE 215 

the Canons 1 . But Leo IX, the third of these German 
Popes, was a man, like most of his successors 2 until the 
middle of the thirteenth century, in whom nationality 
counted for little. Now it was very different. Nation- 
ality was dimly felt in the eleventh century; it was 
a great force in the last half of the thirteenth century. 
Now we have always to bear in mind the nationality, 
not only of the Popes, but of the cardinals. The 
college of cardinals was definitely divided into a French 
and a Roman or Italian party — a division that leads us 
straight on to the Avignon exile, the great Schism, the 
Conciliar Movement, and so even to the Reformation. 
For the moment it became one of the first objects of 
Charles of Anjou's policy to secure the election of 
French Popes. 

After the death of Clement IV he was for some 
years unsuccessful : the first of these non- French Popes 
was Gregory X. But Charles of Anjou aimed not only 
at a French Pope. Just before the election of Rudolf 
he made a determined effort to induce Gregory to 
nominate as Emperor Philip III of France, his nephew 3 . 
The plan was not a random stroke of ambition. The 
French looked back to Charlemagne, the king of the 
Franks, as to their national hero. The strange silence 
of the French chansons on the Imperial coronation of 

1 Vide Bonizo, "Liber ad Amicum," Lib. v. (in Jafte, Monumenta 
Gregoriana) , p. 629. 

2 Hardegen, Imperialpolitik K'onig Heinrichs II. von England, 
however, considers the English nationality of Adrian IV a matter of 
great importance. 

3 This attempt has been examined at length by Heller, Deutsch- 
land und Frankreich in ihren politischen Beziehnngen vom Ende des 
Interregnums bis zum Tode Rudolfs von Habsburg, pp. 24-56. 



216 THE PROBLEM OF THE EMPIRE [CH. 

Charlemagne has been noted 1 ; and it has been main- 
tained that the policy of the French kings, from long 
before Philip III, and down to the sixteenth century, 
was consciously and determinedly influenced by the 
thought that they represented the kingdom of Charle- 
magne and, as such, had a better right to the Empire 
than the German kings 2 . We shall have to return to 
this point again. For the moment it is sufficient to 
observe that the attempt to make Philip III Emperor 
is not an isolated phenomenon, but a sign that, to say 
the least, French pretensions to the Empire are a 
political possibility. Papal doctrine taught that the 
Papacy had transferred the Empire from the Greeks; 
a compliant Papacy could thus make possible another 
" translatio " to the French, who claimed to be the true 
descendants of the Franks 3 . 

Gregory X was not likely to agree to this proposal. 
Nor was it by any means certain that even a French 
Pope would be more compliant. Even Clement IV had 
been very jealous of Charles' exercising his Senatorship 

1 Vide Graf, Roma nella Memoria e nelle Immaginazioni del Medio 
Evo, vol. ii. pp. 428-30. He notes however — " Giova tuttavia avver- 
tire che nei poemi francesi Carlo Magno e detto indifferentemente re o 
imperatore." 

2 Vide Leroux, "La Royaute Francaise et le Saint Empire Ro- 
main" (in Revue Historique, vol. xlix. 1892, pp. 241-88). 

3 We must keep in mind that the "translatio imperii" to the 
Germans will vary according to the outlook of the writer. If he looks 
on the Franci as "French," the "translatio" to the Germans will be 
looked upon as taking place under Otto ; the ' ' translatio ' ' under Charle- 
magne was a "translatio" to the Franci. But we shall see that the 
Germans are by no means willing to see a Frenchman in Charle- 
magne. To them the "translatio imperii" to the Germans takes place 
under Charlemagne; for to them the Franks, the true Franks, are 
Germans. 



Ill] THE PROBLEM OF THE EMPIRE 217 

in Rome. Would a French Pope be better pleased to 
see the nephew of Charles Emperor ? One of the most 
striking characteristics of this period is that, despite 
the very different immediate aims of various Popes, 
all seem to keep before them, as their ultimate aim, the 
safeguarding of Papal supremacy ; none are going back 
on the work of their predecessors. 

Gregory X was certainly not meaning to go back on 
the work of Innocent III, Gregory IX or Innocent IV, 
when he effected the election of Rudolf. The Empire, 
that now revived, was not to be the Hohenstaufen 
Empire. In this lay the difficulty of the situation. 
Nominally the Empire was the same as it had ever 
been. The Interregnum was, after all, only a long 
vacancy, during which candidates for the Empire had 
been almost always in the field. There had been no 
formal surrender of Imperial claims. The question of 
the Empire's connection with Italy still remained open, 
and until that was settled, the position of the Papacy 
was never secure. In fact it was never settled, as is 
shown by the history of the next century, with Henry VII 
and Lewis of Bavaria. Not even with Charles IV was it 
formally settled. The cession by Rudolf of the Romagna 
was a step towards a settlement; but it was not carried 
out until after Gregory was dead; and, as is well known, 
Rudolf was never actually crowned Emperor 1 . 

1 The cession of the Romagna was made to Nicholas III ; the 
documents relating to it are in Theiner, Codex JDiplomaticus Dominii 
Temporalis S. Sedis, vol. i. pp. 203-48. Vide also Rodenberg, " Zur 
Oeschichte der Idee eines deutschen Erbreiches im 13 Jahrhundert " 
(in Mittheilungen des Instituts filr oesterreichische Geschichtsforschung, 
vol. xvi. 1895), pp. 33-40, for some excellent pages on Gregory X's' 
policy towards the Empire and his views on its connection with 



218 THE PROBLEM OF THE EMPIRE [CH. 

The reality of the problem, which the future of the 
Empire presented, can be seen in the numerous projects 
during the last half of the thirteenth century, both 
before and after the election of Rudolf, which aimed at 
a complete and radical solution of these difficulties. All 
these plans have been examined with great learning 
and detail 1 . In some cases their existence is to be 
inferred rather than proved for certain ; in other cases 
we have definite information. A brief survey of the 
most important of them will lead us on to the examina- 
tion of the political literature of our period. 

We have referred above to an oath exacted from 
Charles of Anjou by Urban IV and relating to the 
possible union of his Sicilian crown with any other. 
In this may be seen a foreshadowing of more definite 
projects. Charles promises that neither he nor his 
heirs will ever procure their election, or agree to their 
election, should it take place, as king or Emperor of 
the Romans, as king of Germany, or as " dominus " of 
Lombardy or Tuscany 2 . Now what is remarkable here 

Italy. Speaking of his threat to the electors, that if they did not pro- 
ceed to an election, he would himself nominate an Emperor, he says : 
" Gregor X ist der erste gewesen, welcher vor aller Welt den Satz 
ausgesprochen hat, dass der Papst das Wahlrecht den Kurf ursten unter 
Umstanden beseitigen und die papstlichen Ernennung an die Stelle 
setzen konne" (p. 35). On the other hand Gregory was firmly con- 
vinced that the Empire was a part of the divine ordering of the world ; 
vide below, p. 226, note 1. 

1 Vide Busson, "Die Idee des deutschen Erbreiches und die ersten 
Habsburger ' ' (in Sitzungsberichte der Philosophisch-Historischen Classe 
der kaiserl. Akademie der Wissenschaften (Vienna), vol. lxxxviii. 1878, 
pp. 635-725) , and Rodenberg, the article referred to in the preceding note. 

2 Rodenberg, op. cit. p. 1 and ff. Charles promises "quod nun- 
quam per se vel alios seu quocumque modo procurabunt, ut eligantur 
vel nominentur in regem vel imperatorem Romanorum vel regem 



Ill] THE PROBLEM OF THE EMPIRE 219 

is the separation of the Regnum Romanorum from the 
Regnum Theotonie, and of both from the " dominium " 
of Lombardy and Tuscany. Nor, it seems, can this be 
due to the chance wording of the oath 1 ; taken in 
conjunction with other examples, it shows that already 
Urban IV entertained the possibility of a German 
kingdom separate both from the Empire and from Italy. 
Clement IV's relations with the two rivals, Richard 
and Alphonse, do not seem to have been so neutral as 
Urban's. It is at least a not impossible hypothesis 2 
that Clement, who speaks of himself as intending so 
to dispose of this "dilatum diu negotium...ut per nos 
vel per successores nostros initio prestito finem possit 
accipere Deo gratum et necessarium toti mundo 3 ," may 
have had in mind some arrangement by which Richard 
of Cornwall should obtain the German crown, but on 
conditions that would somehow have severed it from con- 
nection with Italy. Certainly Richard, whose strength 
lay chiefly in north Germany, was a far more acceptable 
candidate than Alphonse, who, owing to the geographical 

Theotonie seu dominum Lombardie aut Tuseie vel majoris partis 
earundem Lombardie vel Tuseie ; et si electionem vel nominationem 
ad imperium vel ad regnum Romanum seu ad regnum Theotonie aut 
ad dominium Lombardie vel Tuseie seu majoris partis earum de ipsis 
celebrari contigerit, nullum hujusmodi electioni vel nominationi 
assensum prestabunt." 

1 Rodenberg, op. cit. p. 3: "Diese Scheidung beruht nicht etwa 
auf Versehen oder Nachlassigkeit, denn sie ist weiter in dem Vertrags- 
entwurf e consequent durchgef iihrt ; wir begegnen ihr auch in der sonst 
vielfach abweichenden Urkunde, durch welche die bevollmachtigten 
Kardinale 1265 Karl von Anjou das Konigreich Sicilien iibertrugen, 
und spater erscheint sie wieder in dem Eide, den Karl 1276 Johann XXI 
leistete." 

2 Rodenberg, op. cit. pp. 19 and ff. 

3 Rodenberg, op. cit. p. 22. 



220 THE PROBLEM OF THE EMPIRE [CH. 

position of his own kingdom, was mainly attracted to 
the Empire by its claims over Italy. 

This, however, can be at best but probable conjecture. 
We come to certainty in a memorial of topics to be dis- 
cussed at the Council of Lyons, drawn up by Humbert 
de Romanis 1 . The last proposition deals with the 
Empire. It is proposed that a vicar should be ap- 
pointed for the vacant Empire a ad quern haberetur 
recursus propter guerras et casus varios emergentes " ; 
and that the "rex Teutonie" should become an hereditary 
king, " and thenceforth be content with that kingdom " 
— as such he would be more feared and justice would be 
better done in Germany. In Italy there should be one 
or two kings " sub certis legibus et statutis," appointed 
with the consent of the cities and prelates. They 
should be hereditary kings, who in certain cases could 
be deposed by the Pope. Or there might be a king 
of Lombardy, who would also be Imperial vicar in 
Tuscany, during a vacancy of the Empire, and who 
would only recognise, as his overlord, an Emperor con- 
firmed and crowned by the Pope. " Imperium enim," 
Humbert concludes, " quasi ad nihilum est redactum, 
et a pluribus, quotquot fuerunt electi ad imperium seu 
promoti, plura mala sub eodem dominio secuta sunt, 
et pax et unitas turbata et strages hominum facte 
et pauca bona secuta ; et alia multa sunt, que realiter 
persuadent, ut queratur modus aliquis conveniens ad 



1 He was general of the Dominicans, though he had resigned before 
this date. He died in 1277, having refused the patriarchate of Jeru- 
salem and a bishopric. There is an account of his life and writings 
in Feret, La Faculte de Theolpgie de Paris et ses Docteurs les tplus 
celebres, vol. n. pp. 495-503. 



Ill] THE PROBLEM OF THE EMPIRE 221 

providendum circa hoc, si valeat inveniri 1 ." We cannot 
suppose that a scheme like this had no dependence on 
Papal plans and policy 2 . And though the next year 
saw Rudolf's election, the project of Humbert de 
Romanis recurs again under Nicholas III, and in a 
form which provides us with further detail. Ptolemy 
of Lucca tells us in his Historia Ecclesiastica that 
Nicholas III treated with Rudolf " super novitatibus 
faciendis in Imperio 3 ." The whole Empire was to be 
divided into four parts — a German kingdom for Rudolf 

1 The text is given by Roclenberg, op. cit. p. 31 (from Martene and 
Durand, Amplissima Collectio Veterum Scriptorum, vol. vn. col. 198): 
"Circa imperium vacans videtur constituendus vicarius ad quern 
haberetur recursus propter guerras et casus varios emergentes, vel 
addendo, quod statueretur cum pace comitatus (Rodenberg puts a ? after 
"comitatus"), quod rex Teutonie fieret non per electionem sed per 
successionem et esset deinceps contentus regno illo et magis timeretur 
et magis justitia in regno Teutonie servaretur. Item quod in Italia pro- 
videretur de rege uno vel duobus sub certis legibus et statutis, habito 
consensu communitatum et prelatorum , et per successionem regnarent in 
posterum, in certis casibus possent deponi per apostolicam sedem ; ali- 
quando enim Lumbardi regem habuerunt ; vel quod rex in Lumbardia 
institutus esset vicarius imperii in Tuscia vacante imperio, et im- 
peratori confirmato et coronato per apostolicam eedem, et non aliter, 
regnum recognosceret ut vassallus. Imperium enim etc." 

2 Rodenberg, op. cit. p. 32. 

•' Historia Ecclesiastica, Lib. xxiii. chap. 34 (in Muratori, Rerum 
Italiarum Scriptores, vol. xi. col. 1183): "Eodem anno Rodul- 
phus suam filiam in uxorem Carolo Martello tradidit. Quo etiam 
tempore, ut tradunt Historiae, Nicholas III cum Rodulpho jam dicto 
tractat super novitatibus faciendis in Imperio, ut totum Imperium 
in quatuor dividatur partes, videlicet in regnum Alamanniae, quod 
debebat posteris Rodulphi perpetuari ; in regnum Viennense, quod 
dabatur in dotem uxori Caroli Martelli filiae dicti Rodulphi. De 
Italia vero praeter regnum Siciliae duo regna fiebant; unum in 
Lombardia, aliud vero in Tuscia; sed quibus darentur, nondum erat 
expressum: sed suspicandi satis erat materia." And vide Busson, 
op. cit. p. 649 and ff., where he argues weightily for the reliability 
of Ptolemy's information. 



222 THE PROBLEM OF THE EMPIRE [CH. 

and his heirs; a kingdom of Aries for Charles Martell 
(of Anjou) and his wife, Rudolf's daughter; and two 
Italian kingdoms of Tuscany and Lombardy. " Quibus 
darentur," says Ptolemy of these last, "nondum erat 
expressum ; sed suspicandi satis erat materia." There 
is reason to believe that Nicholas intended them for 
his nephews, two of the Orsini 1 . 

None of these projects, we know, came to anything, 
but for us their importance is very great. It is, indeed, 
by no means clear, either in Ptolemy of Lucca's account 
of Nicholas Ill's plans or in the memorial of Humbert 
de Romanis, what precisely is to be the future of the 
Empire. Humbert de Romanis really seems to make 
three distinct proposals. First, that an imperial vicar 
should be appointed, to whom recourse might be had 
in the troubled state produced by the long Interregnum ; 
we must remember that the memorial was drawn up 
before the election of Rudolf of Habsburg. Or secondly, 
that the German crown should become hereditary and 
that one or two hereditary kings — in certain cases to 
be deposed by tjie Papacy — should be set up in Italy : 
no doubt in Lombardy and Tuscany, since southern Italy 
did not enter into the question. Or thirdly, tlfet the 

1 Busson, op. cit. App. 664-5, and a note by the same author — 
4 ' Zu Nicolaus III Plan einer Theilung des Kaiserreiches ' ' (in Mitthei- 
lungen des Inst, fur oesterreichische Geschichtsforschung, vol. vn. 1886), 
pp. 156-9. Ptolemy of Lucca, op. cit. cap. 31, col. 1182, says of 
Nicholas — "nimis fuit amator suorum." It is worth noting that 
Dante, who placed Nicholas III in Hell among the simonists, makes 
him say : 

"E veramente fui figliuol dell' orsa, 
cupido si, per avanzar gli orsatti, 
che su 1' avere, e qui me misi in borsa." 

(Inferno, xix. 70-2.) 



Ill] THE PROBLEM OF THE EMPIRE 223 

single king of Lombardy — he has just recalled the fact 
that " aliquando Lumbardi regem habuerunt " — should 
be Imperial vicar in Tuscany during a vacancy of 
the Empire, and should only recognise his kingdom 
(i.e. Lombardy) as feudally dependent upon such 
Emperors as were confirmed and crowned by the 
Pope. We see, then, that in the first and third proposals 
the existence of the Empire is accepted, with — and 
this was doubtless of prime importance to Humbert — 
guarantees that its claims over Italy should not be 
prejudicial to the Papacy. In the first proposal the 
vicar appointed is apparently to be vicar for the whole 
Empire, but in the third he seems merely intended 
to regulate the affairs of northern Italy. But in the 
second proposal nothing is said of the Empire, and it 
seems an inevitable conclusion that here Humbert 
proposes nothing less than that the Empire should 
disappear and its place be taken by these three 
hereditary kingdoms 1 . It is to be noticed that he 

1 Rodenberg, op. cit. p. 32, thinks that Humbert means that the 
German king, as such, is to have no right to the Empire, but " es 
(i.e. the Empire) deswegen ganz zu beseitigen, kommt ihm nicht in 
den Sinn, und ein solche Gedanke ware seiner Zeit wohl uberhaupt 
unfasslich gewesen." This I cannot agree with; this chapter will 
attempt to show that such a thought was by now not at all impossible. 
Busson, op. cit. p. 651, seems to me far more correct when he says: 
"Das Kaiserthum, das fruher neben dem Papstthum als zweite Grund- 
saule der Universitas Christiana gegolten, war seit dreissig und mehr 
Jahren erledigt — wir finden wiederholt bei Geschichtsschreiber Italiens 
zu Ende des 13 Jahrhunderts die Ueberzeugung ausgesprochen dass 
das Kaiserthum mit Friederich II definitiv sein Ende erreicht habe 
(he refers to Salimbene). Die alte Ordnung war vernichtet, ihre 
einfache Wiederherstellung durch die geanderten Verhaltnisse er- 
schwert, so dass wie von selbst der Gedanke sich nahe legen konnte 
die zerstorte alte Ordnung durch eine neue zu ersetzen." 



224 THE PROBLEM OF THE EMPIRE [CH. 

talks of a Rex Teutonie, not of a Rex Romanorum, 
though this fact by itself is not decisive. It became 
a common device to talk of the king of Germany when 
one wished to avoid any hint of the Roman character 
of the Empire, and consequently its universality or 
connection with Italy. Now, in the third proposal the 
connection between the Empire and Italy is retained. 
The king of Lombardy is to recognise his kingdom as 
dependent upon the Emperor, when once the Emperor 
is confirmed and crowned, and he is only to be Im- 
perial vicar in Tuscany, while the Empire is vacant. 
Therefore it is quite clear that in the third proposal 
Humbert conceives of the Empire as still elective — 
indeed how else could he propose that the king of 
Lombardy should recognise his kingdom as dependent 
only on a confirmed Emperor ? In the second proposal, 
on the contrary, there is no mention of any connection 
between the hereditary German kingdom, with which 
the German king is to be content, and the two hereditary 
Italian kingdoms. There can therefore be no reason 
to think that Humbert proposes that this hereditary 
German king should still be allowed even the empty 
title of Emperor. Similarly in the plan of Nicholas III 
there is no reason to think that the hereditary German 
king is to retain the title of Emperor. Certainly 
nothing is said in Ptolemy's account which points to 
such a conclusion. The only mention of the Empire 
is its partition. The very fact that it is the Empire, 
which it is proposed to partition, leads one, in the 
absence of anything said to the contrary, to suppose 
that the Empire, once partitioned, will no longer exist. 
The cause of the proposed partition was the fact that 



Ill] THE PROBLEM OF THE EMPIRE 225 

accidentally an Empire, called Roman and traditionally 
composed of other territories besides Germany, had 
come to be associated with the German kingdom. Why 
then, when the Papacy had at last broken that associa- 
tion, should it leave the German king with the title of 
Emperor? For with that title would go a legacy of 
traditional claims, not easily to be separated from it. 
Nor must it be forgotten that the Papacy, in allowing 
the Empire to become hereditary, would lose, with the 
right of confirmation and coronation, the main source 
of its actual supremacy over so many Emperors. 
Theoretically the Pope did not confirm or crown the 
German king, but the king of the Romans. Accident 
had united those two crowns. An hereditary German 
kingship had no dangers for the Papacy: but an 
hereditary Empire, however restricted, could never be 
quite without danger : even if the Imperial claims 
over Italy were formally surrendered, the idea of its 
universality would remain. 

However, we should remember that we have here 
only the report of the projects of Nicholas III, just as 
Humbert's memorial is not a treatise, but the heads of 
subjects to be discussed at the council. It may not be 
clear what either of them intends with regard to the 
Empire, but it is quite clear that neither of them reveals 
any conception of the Empire as a necessary part of 
the divine or human ordering of the world. There is as 
little sentiment in these proposals as was shown by the 
eighteenth century politicians who partitioned Poland. 
We are now come to a period of the Middle Ages, when it 
is no longer possible to say that men could not conceive 
of the world without the Roman Empire or could not 

w. 15 



226 THE PROBLEM OF THE EMPIRE [CH. 

conceive of any other Empire than the Roman Empire. 
Nothing can better illustrate the different modes of 
thought, which in the Middle Ages, as in all other ages, 
lived side by side, than to compare the tone of these 
proposals to dismember, if not to destroy, the Empire, 
with the tone of Gregory X's letters to Rudolf of 
Habsburg. To Gregory the Roman Empire was still to 
be one of the twin divine powers, the gifts of God, by 
which, united " mutuis auxiliis," but independent each 
in its proper sphere, the world is governed 1 . We must 
be prepared in the political thought, which we are now 
to examine, for the most diverse views of the Empire — 
its character, its past and its future. We shall find 
some writers pleading for the Empire from the stand- 
point of Gregory X, and others arguing that, as the 
other world-monarchies were equally from God with 
the Roman Empire, and as God willed them to give 
place to the Roman Empire, so He may now will it, 
in its turn, to give way to those kingdoms which do not 

1 Vide the well-known letter, printed in Theiner, Codex Diplomaticus 
Dominii Temporalis S. Sedis, vol. i. no. 336, p. 188: "Gregorius epis- 
copus, etc. carissimo in Christo filio Eudolfo Kegi Romanorum 
illustri, salutem, etc. Sacerdotium et Imperium non multo differre 
merito sapientia civilis asseruit, si quidem ilia, tamquam maxima dona 
dei a celesti collata dementia, principii conjungit idempnitas. Ea 
velut auxiliis mutuis semper egentia suffragii suis inter ipsa vicibus 
alternandi unit necessitas, et ad presentium mundi regimen instituta, 
ut alteram videlicet spiritualibus ministret, reliquum vero presit 
humanis, una et eadem institutionis causa finalis ipsa inseparabiliter 
licet sub ministeriorum diversitate conjuncta designat. Horum in- 
super necessariam unionem alterius considerata carentia evidenter 
insinuat, et emergentia exinde discrimina manifestant. Imperium 
namque in apostolice sedis vacatione sue destituitur a rectore salutis : 
Ecclesia vero in tbroni cessatione Cesarei oppressorum patet incursibus, 
dum suo def ensore privatur. ' ' 



Ill] THE PROBLEM OF THE EMPIRE 227 

or will not obey it. The necessity of the Koman Empire 
was no longer, if it ever had been, an axiom of political 
thought. 

The first treatise which we propose to consider is 
that known as the De praerogativa Romani Imperii 
of Jordan of Osnaburg. The treatise well deserves 
its reputation, not for its scientific value as a work 
of political theory, but for its excellence as an 
illustration of political thought in the last half of 
the thirteenth century. Yet it is not altogether an 
easy treatise to study. Ever since Waitz produced 
a new and critical edition of it in 1869, controversy 
has been busy round it. In a chapter such as this 
it is impossible, as a general rule, to inquire into 
controversies as to the authorship or similar points 
connected with the treatises which we examine. We 
can only pause for such inquiries in cases where 
it is impossible, on the one hand, to neglect a par- 
ticular treatise, and, on the other hand, to make 
a proper use of it without noticing the controversial 
questions which it involves. The present treatise is 
a case in point. We can make no pretence to solve 
the questions at issue; but it is right and neces- 
sary to state what these questions are, and to make 
clear what course we mean to adopt amid the rival 
solutions. 

The treatise, as printed 1 , is preceded by an intro- 

1 I shall refer to and quote from Waitz 's edition, in the Abhand- 
lungen der konigl. Gesellschaft der Wissenschaften zu Gottingen. The 
treatise as printed in Goldast, Monarchia S. Bomani Imperii, or Schard, 
Syntagma Tractatuum, does not give this introductory letter, and is 
called "Chronica Mag. Jordani qualiter Rom. Imperium translatum 
fuit ad Germanos." 

15—2 



228 THE PROBLEM OF THE EMPIRE [CH. 

ductory letter 1 , in which the writer begins with pro- 
fessions of humility to one whom he addresses later as 
" pater sancte V and begs for indulgence towards his 
work (" scriptum "). He has put his name in the rubric 3 
above, not from ostentation, but that a cognita scriptoris 
imperitia scripto fides adhibeatur dumtaxat quatenus 
constituit ex ipsa rei evidentia vel ex scriptis aucten- 
ticis aliorum." The letter then goes on to relate how 
the writer was lately celebrating Mass at Viterbo. 
Coming to the passage where the Church was wont to 
pray for the Emperor, he found all mention of the 
Empire omitted from the book, " de capella Romani 
pontificis," which he was using. This he cannot ascribe 
to chance or the fault of the copyist 4 . So he fears 
that if the Roman Church presumes to say — " We have 

1 pp. 39-42. 2 p. 42. 

3 The rubric runs: "Memoriale reverendi patris domini Jakobi de 
Columpna Sancte Marie in Via lata diac. cardinalis de prerogativa 
imperii Romani." This heading (and indeed the whole letter) are 
wanting in some mss. On the other hand one ms adds between the 
words ' ' cardinalis ' ' and ' ' de prerogativa ' ' the following — ' ' quod sibi 
ad honorem nominis sui Alexander de Roes, canonicus Sancte Marie 
in capitulo (ace. to Schraub, Jordan von Osnabrilch und Alexander von 
Eoes, p. 21, this should read ' capitolio ') Coloniensi, omnium cleri- 
corum suorum minimus et humillimus." Vide Waitz's apparatus 
critic-US on p. 39. 

4 Vide p. 40: "Nuper itaque vacante sede per mortem sanctissimi 
patris domini Nicolai pape tercii, dum ego indignus peccator in civitate 
Viterbensi sacramentum corporis et sanguinis domini nostri Jhesu 
Christi conficerem, habui pre manibus librum michi ad hoc de capella 
Romani pontificis commodatum. Et cum ad ilium locum canonis 
pervenissem, ubi sancta ecclesia catholica orare consuevit pro antistite 
et pro rege ac aliis orthodoxis, memoriam quidem inveni antistitis, ut 
oportuit, sed regiae dignitatis memoriam non inveni. Neque hoc casu 
vel scriptoris negligentia factum esse arbitror, cum eundem defectum 
in libris religiosorum et secularium clericorum alias tarn in Urbe quam 
extra similiter invenissem." 



Ill] THE PROBLEM OF THE EMPIRE 229 

no king but the Pope " — worse will befall it than befell 
the Jews, when they said — "We have no king but 
Caesar." " Sed tutius esse puto tacere quam de hac 
materia plura loqui." He will only add that, as the 
Roman eagle cannot fly with one wing, so also Peter's 
ship cannot be navigated with one oar amid the storms 
of this world. The dove that has only one wing will 
soon fall a prey, not only to the birds of the air, but to 
the beasts of the field. No . monstrosity lives well or 
long. And so, with more excuses of his ignorance and 
professions of humility, he presumes to offer " quoddam 
scriptum viri doctissimi venerandi magistri Jordani 
canonici Osnaburgensis, quod ipse ad petitionem quo- 
rundam amicorum suorum de prerogativa Romani imperii 
edidit 1 ." 

We see at once that, if the letter be one whole, it is 
not by Jordan of Osnaburg; but then, in that case, what 
is the "scriptum" referred to in the earlier part of the 
letter ? To answer this difficulty Waitz divided the letter 
into two parts — without manuscript authority 2 . The 
first part of the letter he ascribed to Jordan, and the 
"scriptum" referred to is his treatise; the second part 
of the letter he ascribes to the Cardinal Colonna, who 
is sending the treatise of Jordan to Pope Martin IV 3 . 
Wattenbach 4 , soon after W'aitz's publication, gave quite 
a different solution. The letter he considered to be 
one whole, addressed by Alexander of Roes to Cardinal 

i pp. 41-2. 

2 Vide Schraub, op. cit. p. 18. In Waitz's apparatus criticus two 
mss are mentioned as having " Prologus" at the place of division, but 
they are apparently of very little authority. 

3 Vide the introduction to Waitz's edition. 

4 Vide Schraub, op. cit. p. 3. 



230 THE PROBLEM OF THE EMPIRE [CH. 

Colonna. The "scriptum" of Jordan, referred to at the 
end of the letter, he considered to be Chapter I. of the 
printed treatise; the "scriptum" of the writer of the 
letter was the rest of the treatise. He does not appear, 
however, to have gone into the question exhaustively. 
Numerous other solutions 1 have been offered, and in all 
of them the treatise is taken as a whole and ascribed 
to Jordan; the introductory letter has been the real 
centre of controversy. Finally, in 1910, Dr Schraub 2 , 
one of the latest to approach the problem, has revived 
the solution of Wattenbach, supporting it among other 
evidence by a new collation of the manuscripts. 

The actual attribution of the treatise, or of parts of 
it, to Jordan of Osnaburg or Alexander of Roes is for 
our purpose unimportant. In fact, we know so little of 
either of them, that they can be little more than names 3 . 
But, even putting aside the question of manuscript au- 
thority 4 , the arguments brought forward by Dr Schraub 
are such as cannot be passed over in silence. On the 
other hand, it is not possible within our limits to enter 
into as full a consideration of the question as its interest 

1 They are enumerated by Schraub, op. cit. pp. 3-5. Most im- 
portant, and the only ones, besides Waitz and Schraub, which I have 
seen, are Wilhelm, "Die Schriften des Jordanus von Osnabriich " (in 
Mittheilungen des Instituts fur oesterreichischer Geschichtsforschung, 
vol. xix.), and Grauert, " Jourdain d'Osnabriich et la Notitia Saeculi " 
(in Melanges Paul Fabre). 

2 Vide his Jordan von Osnabriich und Alexander von Roes. 

3 Jordan of Osnaburg is mentioned in Osnaburg charters from 
1251-83. For what is known of him vide Waitz 's Introduction, p. 4, 
and Schraub, op. cit. pp. 44-6. For Alexander of Roes vide Waitz, 
p. 9, and Schraub, pp. 47-8. The Cardinal Jacob Colonna played an 
important part in the history of these years and is well known for the 
later part, played by him and his family, in the reign of Boniface VIII. 

4 Vide Schraub, op. cit. pp. 5-14. 



Ill] THE PROBLEM OF THE EMPIRE 231 

deserves. Our best plan will therefore be to examine 
Chapter I. of the treatise apart from the rest, leaving 
open the question of authorship, both in the case of 
Chapter I. and of the remaining chapters, and not 
binding ourselves to accept all Dr Schraub's conclu- 
sions as to the aim and character of either part 1 . 

The author of Chapter I begins by pointing out in 
how many ways God has honoured the Roman Empire — 
and not only has, but does, since, while the Roman 
Empire stands, the man of sin, Antichrist, will not 
come 2 . And as Christ Himself, so His vicar S. Peter 
bids it be honoured, saying: "Fear God and honour 
the king 3 ." Would that the Germans, to whom has 
been transferred the "regimen" of the world and Roman 
Church, would understand this and act accordingly: 

1 The following point, for example, seems to me to need explana- 
tion. If, as Dr Schraub holds, the introductory letter is one whole, 
surely its form is very strange. If Alexander of Roes is sending his 
and Jordan's treatises together to the Cardinal, should we not expect 
him rather to mention the two treatises together, than, as he does, his 
own at the beginning and Jordan's at the end of the letter, with the 
important event — i.e. the omission of the prayers for the Emperor- 
between the two ? That event was the origin of his fears for the 
safety of the Church and so the original cause of writing his treatise. 
It would therefore more naturally precede the mention of his own 
treatise than of Jordan's, which on Schraub's hypothesis he is adding 
to his own. Still, the beginning of the supposed second half of the 
letter — "nuper itaque vacante etc."— seems certainly against the 
division of the letter. 

2 Vide p. 47: "Item Dominus non solum honoravit, sed honorat 
Romanum imperium in hoc, quod Romano imperio stante et durante 
non veniet homo peccati, filius perditionis, Antichristus." 

3 Vide p. 49 : " Sicut autem Christus dominus et magister omnium 
in se ipso Romanum imperium honoravit, ita beatus Petrus, cui Domi- 
nus ecclesiam suam regendam commisit, honorari precepit in epistola 
sua dicens: 'Deum timete et regem honorificate.' " 



232 THE PROBLEM OF THE EMPIRE [CH. 

reverence the king, whom God has given them "loco 
justitie," and recognise that it is to the Roman Empire 
that they owe their exaltation. Would that those, 
whose right it is to elect a king, "afterwards to be 
promoted Emperor," would foresee the dangers which 
will come when the Roman Empire is no more. "For 
it must needs be that offences come; woe to that man 
by whom the offence cometh 1 ." The author now 
points out that the right of election belongs to the 
three archbishops and the Count Palatine, who was 
originally mayor of the old royal palace in Treves 2 . The 
people of these dioceses are the Germans, thus called 
either as being related to the Romans, through a 
common Trojan descent, or directly sprung from the 
Romans: "for the Emperor Julius subdued that land 
to the Roman Empire and occupied it with Roman 
inhabitants. And for this reason due order required 

1 Vide pp. 49-50: "Utinam Germani, ad quos mundi regimen 
est translatum et quibus ecclesie Romane regimen est commissum, 
saperent et intelligerent ac novissima providerent ! Utinam saperent 
justitiam et earn diligerent et regem quern Dominus eis loco justitie 
posuit, reverenter intenderent, eique sicut Dei ministro honoris debi- 
tum exhiberent. Utinam exaltati per Romanum imperium et dilatati, 
magnitudinem bonorum in eos collatorum intelligerent et non essent 
ingrati ! Utinam principes, praesertim hii ad quos pertinet jus et 
potestas eligendi regem in imperatorem postmodum providendum, 
pericula, que venient sublato Romano imperio, providerent ! Dum 
enim sublatum fuerit Romanum imperium, tribulatio tanta net in 
mundo, quod, nisi dies illius tribulationis, ut dicitur in Marco et 
Matheo, ' fuissent breviati, non fieret salva omnis caro.' Utinam ergo 
Germani, ad quos et in quos imperiale regnum est translatum, hujus 
regni, quod Dominus pOsuit in prodigium super terram, novissima 
providerent et sublationem ejus pertimescerent ! Licet enim necesse 
sit, ut veniant scandala, ve tamen illis, per quos sunt scandala 
ventura." 

2 Vide p. 50. 



Ill] THE PROBLEM OF THE EMPIRE 233 

that the Romans, as senior, should have the Sacer- 
dotium and the Germans, as junior, the Regnum 1 ." 
Later the Bohemian and Saxon dukes and the " comes 
Marchie " were added to the electors; for at the time 
of the " translatio imperii " under Charlemagne these 
other peoples were either not, or only newly, catholic 2 . 
Finally, the author once more returns to the dangers 
that must follow the destruction of the Empire 3 . All 
that give a hand to this destruction are the precursors 
of Antichrist. Let the Romans and their pontiffs 
beware lest for their sins the Sacerdotium 4 , by the just 

1 Vide p. 51: "Et hii populi dicuntur Germani quasi de eodem 
germine ortum habentes cum Romanis, videlicet de Trojanis, Enea 
scilicet et Priamo juniore; vel dicuntur Germani quasi deRomanorum 
germine germinati. Julius enim imperator illam terrain Romano 
subegit imperio et earn Romanis habitatoribus occupavit. Et propter 
hoc debitus ordo requirebat, ut, sicut Romani tamquam majores 
sacerdotium, sic Germani tamquam minores regnum optinerent." 

2 Vide p. 51. 

3 Vide pp. 51-2: "Item notandum, quod cum Antichristus ven- 
turus non sit, nisi prius imperium destruatur, indubitanter omnes 
illi qui ad hoc dant operam ut non sit imperium, quantum ad hoc, 
sunt precursores et nuntii Antichristi. Caveant ergo Romani et eorum 
pontifices, ne peccatis et culpis suis exigentibus justo Dei judicio 
sacerdotium ab ipsis auferatur! Caveant nihilominus presules et 
principes Germani, ne ipsi per ambitionem temporalis potestatis jura 
sibi et possessiones imperii vendicent et usurpent, quia, sicut supra 
scriptum est, necesse est ut veniant scandala, ve autem illis per quos 
scandala sunt ventura ! Et vere necesse est, quia tantus ardor domi- 
nandi et habendi cor eorum excecabit, ut nee facere velint veritatem, 
quam noverunt, nee ab aliis audire, quam ignorant, sicut scriptum 
est: ' Oculos habent et non videbunt, aures habent et non audient.' " 

4 Waitz reads "imperium " here, but gives in the apparatus criticus 
the reading of one ms as "sacerdotium." This I have ventured to 
adopt, as the author has already made a special point of contrasting 
the Roman Sacerdotium with the German Imperium. To say now 
that the Romans may lose the Imperium for their sins would be 
a contradiction — the Imperium has been translated to the Germans, 



234 THE PROBLEM OF THE EMPIRE [CH. 

judgment of God, be taken away from them; and let 
the German princes, spiritual and temporal, beware of 
usurping the rights and possessions of the Empire — 
"it must needs be that offences come, but woe to that 
man by whom the offence cometh." It must needs 
be, he concludes in a tone of pessimism, because the 
lust of power and possession blinds them. "Having 
eyes, they will not see; having ears, they will not hear." 

There is certainly nothing in this first chapter which 
argues against Dr Schraub's contention that it was 
Avritten during the Interregnum, and that its object 
was to warn the Roman Pope and the German princes 
of the dangers in store for Christendom, so long as the 
Empire remained vacant 1 . 

As regards the remaining chapters there is no doubt 
as to their unity or that they were written when the 
Interregnum had come to an end with the election of 
Rudolf 2 . Dr Schraub has pointed out the various points 
of difference between Chapter i. and these remaining 
chapters 3 , and he concludes that these latter were 
written to combat the idea of a new "translatio imperii" 
to the French 4 , such, as we have seen, was actually 
proposed. Others have seen in the treatise a work 
directed against the plans of Nicholas III for a partition 
of the Empire 5 ; but Dr Schraub denies this 6 . 

whom he goes on to warn against usurping the Imperial rights and 
possessions. 

1 Vide Schraub, op. cit. pp. 44-7. 

2 Vide below, p. 293, note 1. 

3 Vide op. cit. pp. 23-44. 4 Vide op. cit. pp. 68-77. 

5 So both Wilhelm and Grauert in the articles mentioned above, 
p. 230, note 1. 

6 Vide op. cit. pp. 64-8. 



Ill] THE PROBLEM OF THE EMPIRE 235 

It is not possible for us to enter into the arguments 
to be adduced for either interpretation of the treatise. 
Nor indeed is it necessary. It is not necessary, that is 
to say, to take for granted that the treatise — or, at least, 
Chapter II. and the remaining chapters of the treatise — 
is directed against any one project. We have attempted 
to show that both the plan of a new "translatio imperii" 
to the French and the plans of Nicholas III were 
symptoms, along with many other plans that came to 
nothing, of the consciousness that the fall of the Hohen- 
staufen Empire, both as regards its actual power and the 
theories which supported it, had left a blank in Euro- 
pean politics and political theories which somehow or 
other had to be filled. Nor was the election of Rudolf 
of Habsburg in any sense a final answer to this problem. 
In this way it is possible to connect both parts of 
"Jordan of Osnaburg," even if we accept Dr Schraub's 
theory of their separate authorships. The author of 
the first, still writing in the long Interregnum, may 
see little hope for the future, while the author of the 
second, writing after the election of Rudolf, may be full 
of hope — certain that "in ipsius promotione divinum 
auxilium nunquam se subtraxit." But, in spite of this 
and all other differences, there is a fundamental simi- 
larity between the two, which for our purpose is all 
important. Both authors were Germans, who were 
writing to claim the Empire as of right belonging to 
the Germans. They might specially plead for the Inter- 
regnum to cease, or they might combat the plan of 
transferring the Empire to the French, or the plan of 
dividing up the Empire into separate kingdoms ; but 
at the bottom of all their pleadings was the contention 



236 THE PROBLEM OF THE EMPIRE [CH. 

that the Empire belonged to the Germans, both his- 
torically and by divine ordination. 

This, then, is the first thing to be noticed about the 
authors both of Chapter I. and of the remaining chapters 
— they are patriotic Germans, though their patriotism, 
it is true, is. as narrow as their Germany. The true 
Germans are, for both these authors, the " Franci 
Germani," that is to say, the Franks of the Rhineland 
archbishoprics. The author of Chapter I. is only con- 
cerned with two nationalities — the Germans and the 
Romans. They are related one to another either by 
direct descent or through a common Trojan origin, and 
the Romans are recognised as senior, the Germans as 
junior. The author of the later chapters is concerned 
in addition with another nationality, the Gallici. The 
Franci are the descendants of Priam junior, who came 
to Italy with Aeneas 1 . Thence passing into Gaul, they 
expelled the Gallici about the Rhine and drove them 
westward. They married Teutonic women and were 
called Germani by the followers of Aeneas in Italy — 
"eo quod illi et isti de Germanorum germine processis- 
sent." In course of time all Theutonia "tamquam a 
digniori" is called Germania. Meanwhile the Regnum 
Romanorum expanded and conquered the world. The 
ancient relationship between the Germans and Romans 
was renewed by Roman settlements in the Rhineland 
dioceses. The Alani opposed the Romans, and the 
Senate and the Roman people proclaimed that whoever 
overcame the Alani should be free ("franci, id est liberi") 
from tribute for ten years. The Germans succeeded 
and became known as Franci. These Franci (also 
1 Vide chap. iv. pp. 56-68, for the early history of the Franks. 



Ill] THE PROBLEM OF THE EMPIRE 237 

known as Germani or Gallici Comati), through increase 
of population, sent a part of their number eastward 
beyond the Rhine. These emigrants became the Franci 
Orientales of Franconia. Another part went westward 
beyond the Seine and married Gallic women, adopting 
their manners and language. These became the Franci- 
genae and their land is now called France. 

Gaul, according to our author 1 , is, "large sumendo," 
a province of Europe, bounded on the east by the Rhine, 
on the south by the Alps, on the west by the "termini 
Hispaniae," and on the north by the "sea of Brittany 
and Frisia." It is divided into three divisions — Gallia 
Comata, Gallia Togata, Gallia Bracata. We have seen 
that the original Franks of the Rhineland archbishoprics 
are known as Franci, Germani or Gallici Comati — 
"quae omnia imam gentem determinant." The " French " 
— the Francigenae — are descendants of Frankish fathers 
and Gallic mothers. Up to the time of Charlemagne 
this province of Gaul — in the large sense — formed one 
whole, though there were often many kings within 
it. "Et hec diversitas regum et regnorum in Gallia 
multas facit cliversitates et contrarietates in scripturis, 
que gesta et antiquitates Gallicorum et Francorum 
descripserunt, indifTerenter hiis populis hec nomina 
imponentes 2 ." It is our author's object to trace the 

1 Vide chap. in. p. 54. 

2 Vide chap. iv. p. 61 : "In ista igitur provincia que Gallia dicitur 
et modo a Germanis et Gallicis, Francis et Francigenis possidetur, 
quandoque unum, quandoque plura fuerunt regna, aliquando simul, 
aliquando successive, sicut modo est et diu fuit in Hispania, ubi licet 
plures sint reges, tamen unum dicitur regnum Hispanorum. Et hec 
diversitas, etc." 



238 THE PROBLEM OF THE EMPIRE [CH. 

connection between these old Gallici and Franci and 
the French and Germans of his own day. 

He therefore traces the history of this province of 
Gallia from Pharamond down to Charlemagne 1 . Under 
the Merovingians the kings lived chiefly in Gallia 
Togata, at Rheims and Paris, so that Belgica (i.e. the 
Rhineland dioceses), which S. Maternus had converted 
to Christianity, lived under its own. "reges majores." 
At the deposition of Childeric, Pippin, the mayor of 
the Palace .became king; and thus the kingdom came to 
Charlemagne, to whom also the Empire was transferred 
from the Greeks, and whose mother was Teberga, sister 
of the Greek Emperor Michael. 

Now Charlemagne, "de consensu et mandato Romani 
pontificis," ordained that the Imperium Romanorum 
should be for ever elective by the German princes; 
he considered that it was not right that the sanctuary 
of God, that is the " regnum ecclesie " should be 
possessed by hereditary right; that he himself was of 
Greek, Roman and German blood ; and that both he 
himself and his father Pippin had freed the city of 
Rome and the church of God from the Lombards by 
the help of the Franks or Germans 2 . On the other 

1 Vide chap. iv. pp. 61-8. 

2 Vide chap. v. p. 69: "Sciendum est igitur, quod sanctus Karolus 
Magnus imperator de consensu et mandato Romani pontificis, or- 
dinatione sibi divinitus inspirata, instituit et precepit, ut imperium 
Romanorum apud electionem canonicam principum Germanorum in 
perpetuum resideret. Non enim convenit, sanctuarium Dei, id est 
regnum ecclesie, jure hereditario possideri; considerans, quod ipse 
de Grecorum, Romanorum et Germanorum germine directa linea 
processisset, et quod etiam pater suus Pipinus primo et ipse Karolus 
secundo per Francorum, id est Germanorum, auxilium Romanam 
urbem et ecclesiam Dei de Lumbardorum infestatione liberasset." 



Ill] THE PROBLEM OF THE EMPIRE 239 

hand, being king of the Franks as well as Roman 
Emperor, and further considering that he himself was 
hereditary king of the Franks, he decreed that the 
Francigenae should have an hereditary king of the 
blood royal and a certain portion of the Frankish 
kingdom; and that these kings, as the posterity of 
an Emperor, should own no temporal superior. As 
another recompense he added the "studium philosophie 
et liberalium artium" which he transferred from Rome 
to Paris 1 . 

Thus, according to due and necessary order, the 
Romans, as "seniores," have the Sacerdotium, the 
Germans or Franks as " juniores," the Imperium, and the 
Francigenae or Gallici, as " perspicatiores," the Studium. 
All three — Sacerdotium, Imperium and Studium — are 
necessary to the life, increase and government of the 
holy catholic church; they are its foundation, walls and 
roof respectively. Let those therefore, whose business 
it is, see that this house remains intact, lest Antichrist 
or his precursors come like thieves through its broken 
walls (the Imperium) 2 . 

1 Chap. v. p. 70: "Porro, quia ipse Karolus rex Franco-rum 
extitit et illud regnum ad eum fuerat ex successione devolutum, 
impium fuisset et indecens, quod ipse suos heredes dignitate regia 
penitus denudasset. Statuit igitur iniciando, quod Heinricus ejus 
pronepos consummavit, ut Francigene cUm quadam regni Francorum 
portione regem haberent de regali semine jure hereditario successurum, 
qui in temporalibus superiorem non recognoscerent, cui videlicet tam- 
quam imperatoris posteritas ad homagium vel aliquod obsequium 
teneretur. Huic regi, suo lieredi, in recompensationem regni defalcati 
adjecit studium philosopbie et liberalium artium, quod ipse de urbe 
Eomana in civitatem Parisiensem transplantavit." Waitz, p. 70, 
note 1, says that by the "pronepos " Henry, here mentioned, is meant 
Henry the Fowler. 

2 Chap. v. pp. 70-1: "Et est nota dignum, quod debitus et 



240 THE PROBLEM OF THE EMPIRE [CH. 

We see how our author treats the French claims to 
be the descendants of Charlemagne and his Franks. 
Modern France is a portion of the old Gallia (in the 
large sense), which was Charlemagne's original kingdom. 
The inhabitants of France are Gallici and Franci- 
genae ; it has been allowed the Studium and its inde- 
pendence, and represents the hereditary kingdom of 
Charlemagne, though with shortened boundaries. But 
if the kings of France call themselves "reges Fran- 
corum," they do so merely "a digniori"; they are really 
"reges Francigenarum 1 ." In the same way the true 

necessarius ordo requirebat, ut, sicut Romani tamquam seniores 
sacerdotio, sic Germani vel Franci tamquam juniores imperio, et 
ita Francigene vel Gallici tamquam perspicatiores scientiarum studio 
dotarentur, et ut fidem catholicam, quam Romanorum constantia 
firmiter tenet, illam Germanorum magnanimitas imperialiter tenere 
precipiat, et eandem Gallicorum argutia et facundia ab omnibus esse 
tenendam firmissimis rationibus approbet et demonstret. Hiis si 
quidem tribus, scilicet sacerdotio imperio et studio, tamquam tribus 
virtutibus, videlicet vitali naturali et animali, sancta ecclesia katholica 
spiritualiter vivificatur augmentatur et regitur. Hiis etiam tribus, 
tamquam fundamento pariete et tecto, eadem ecclesia quasi materialiter 
perficitur. . . . Studeant ergo illi, quorum interest, ut hec domus integra 
maneat et intacta, nee, quod absit, parietibus dissolutis fur ille Anti- 
cbristus vel sui precursores intrent aliunde quam per ostium et gregem 
ovium interficiant cum pastore." 

1 Vide chap. v. p. 72: "Verum a tempore prenotato (i.e. the 
separation of ' France ' and ' Germany ' by Charlemagne and Henry I) 
reges Francigenarum se fecerunt tamquam a digniori reges Francorum 
appellari. Et similiter reges Francorum vel Germanorum, quod est 
unum, tamquam a superiori, reges vel imperatores Romanorum 
appellari voluerunt. Illi autem qui usque ad hec tempora reges 
Francorum dicebantur non sunt dicti reges Francorum a Francis 
orientalibus, qui sunt homines grossi et incompositi, neque a Francis 
occidentalibus, qui sunt homines delicati et compositi, sed a Francis 
Germanis, qui in habitu exteriori a Francigenis et in moribus a 
Romanis non multum discordant." Cf. a comparison on p. 60 
between the Franci and Francigenae. They differ in speech, but are 



Ill] THE PROBLEM OF THE EMPIRE 241 

" reges Francorum " call themselves a saperiori " reges 
vel imperatores Romanorum." But the old "reges 
Francorum" were so called not from the " Franci 
orientales " of Franconia, " qui sunt homines grossi et 
incompositi," nor. from the "Franci occidentales," i.e. 
the Francigenae, " qui sunt homines compositi et deli- 
cati," but from the "Franci Germani" (of the Rhine- 
land), "qui in habitu exteriori a Francigenis et in 
moribus a Romanis non multum discordant." 

Read in connection with our previous inquiries the 
significance of this is obvious. Some little confusion 
arises from the author's use of the terms Gallici and 
Gallia in two senses, as well as from the fact that both 
the Gallici (in the narrower sense of the Gallici Comati) 
and the Francigenae are taken as the ancestors of the 
modern French 1 . For, in so far as they are Gallici, they 
have no claim to the Frankish kingdom ; but we have 
seen that he allows them, as Francigenae, to represent 
the hereditary kingdom of Charlemagne, through " de- 
falcating. " Now, as Charlemagne was king of the 
Franks, it is not quite easy to see on what ground our 
author refuses to allow those, who represent his heredi- 
tary kingdom, to be Franks. Still the important fact 
is that he does refuse. Clearly and unmistakably he 
maintains that the Germans are the true Franks and 
that the true kings of the Franks are those who call 

"exteriori habitu satis conformes," except that the Francigenae 
"tamquam juniores" are concerned with juvenile "mores" — tourna- 
ments, poetry, etc. — the Franci with more serious matters — wars 
and discord — " in hoc Romanorum germanitatem quodam modo 
imitantes." 

1 Vide a clear example of this, above, p. 239, note 2, the "Franci- 
gene vel Gallici," as "perspicatiores," have the Studium. 

w. 16 



242 THE PROBLEM OF THE EMPIRE [CH. 

themselves by a higher title "reges Romanorum," as 
those with whom Charlemagne ordained that the 
Empire, transferred to him, should remain. French 
claims to the Empire could be made only on the 
supposition that Charlemagne and his Franks were 
"French." This our author denies. France is to have 
neither a French Emperor, nor even a French Pope. It 
is to be content with its acknowledged independence and 
its intellectual supremacy, as realised in the University 
of Paris. 

The Empire, for the continuance of which in German 
hands this author, as the author of Chapter I., is 
pleading, is not the Empire of the Hohenstaufen — the 
lawyers' Empire — but the Empire of Charlemagne 
and his Franks. Indeed, our author is distinctly hostile 
to the Hohenstaufen. He traces the fortunes of the 
Empire from Charlemagne and through the Saxon 
Emperors up to the time of Frederick Barbarossa 1 . 

1 Vide Chap. vi. pp. 77-9: " Translate itaque imperio de heredibus 
serenissimi principis Henrici primi imperatoris, culpis eorum exi- 
gentibus, electores vota sua in Fridericum quendam nobilem de Sue via 
direxerunt, post ipsum quosdam de suis successoribus et heredibus in 
reges eligentes. Sed utrum dictus Fridericus prece vel pretio, virtute 
vel vicio electorum gratiam meruerit, nescio. Sed hoc scio, quod ab 
illo tempore imperatores parum vel nichil operati sunt laude dignum 
vel vituperio de pleno consilio vel auxilio principum German orum, 
immo per Suevos et Bavaros ac ulteriores Almanos imperium gubernare 
laborabant, ita ut deinceps non regnum Germanie vel Theutonie seu 
Romanorum, sed regnum Almanie vulgariter nuncupetur; et ita sub 
Suevorum imperio potestas et auctoritas imperialis augeri desiit et 
vehementius decrescere incepit. Cujus decrementi causam et occa- 
sionem ego relinquo Gelphis et Gibelinis disputandam. Sed hoc 
adicio, quod, sicut Romani pontifices in Italia fecundiores terras 
imperii, sic Germani principes in Germania meliores terras regni sibi 
et suis ecclesiis quocumque modo vel titulo conquirunt et usurpant. 
Ex quo non est dubium, tandem regnum Romanorum et sacerdotium 



Ill] THE PROBLEM OF THE EMPIRE 243 

How he was elected, "prece vel pretio, virtute vel vicio," 
he does not know. But he does know that from that time 
dated the speedy decay of the Empire. These Suabian 
Emperors did not seek to govern the Empire, whether 
well or ill, by the counsel and with the help of the 
German princes, but of Suabians, Bavarians and the 
" ulteriores Almani," so that men no longer talk of the 
"regnum Germanie vel Theutonie seu Romanorum" 
but of the "regnum Almanie." But he leaves the cause 
of the Empire's decline to be disputed over by Guelphs 
and Ghibellines, only adding that the usurpations 
of the Popes in Italy and of the German princes 
in Germany can but lead to the separation of the 
Regnum and Sacerdotium from their mutual depend- 
ence — "quibus divisis, utriusque desolatio est futura." 
He then recalls 1 a prophecy, long current in Germany, 
of another Frederick, who is to rise from the blood of 

ab invicem dividendum esse. Quibus divisis, utriusque desolatio est 
futura." 

1 Vide pp. 79-82 : " Verum tamen qualis Fridericus ultimus fuerit 
quern dominus Innocentius Papa IIII destituit, propheta insinuat ubi 
dicit : ' Percussisti caput de domo impii, denudasti fundamentum etc' 
Dicunt etiam, a longis temporibus vatiocinatum esse in Germania, 
quod de hujus Friderici germine radix peccatrix erumpet Fridericus 
nomine, qui clerum in Germania, et etiam ipsam Romanam ecclesiam 
valde humiliabit et tribulabit vehementer. Dicunt praeterea, aliud 
ibidem esse vulgare propheticum, quod de Karlingis, id est de stirpe regis 
Karoli et de domo regis Francie, imperator suscitabitur Karolus nomine 
qui erit princeps et monarcha totius Europe et reformabit ecclesiam 
et imperium, sed post ilium nunquam alius imperabit. Qui hujus- 
modi vaticiniis et incertis propbetiis vult fidem adhibere, adhibeat. 
Ego certus sum quod Creator sue presidet creature, et quod justo Dei 
et irreprehensibili agitur judicio, ut secundum merita cleri et populi 
aliquando ecclesia habeat defensorem, aliquando nullum, aliquando 
vero pro rege tirannum ad vindictam reproborum et ad exercitium 
electorum." 

16—2 



244 THE PROBLEM OF THE EMPIRE [CH. 

Frederick II and to humble and oppress the Church, 
and a second prophecy of another Charles, of the blood 
of Charlemagne and "de domo regis Francie," who is 
to be monarch of all Europe, reform the Church and 
Empire, and be the last of all Emperors. The author 
does not commit himself to belief in such uncertain 
prophecies. He is sure that God's judgment is just; 
and only lately, after a vacancy of thirty-two years, 
God has raised up Rudolf of Habsburg, to show that 
divine help is never wanting 1 . 

Our author had good reason to be incredulous with 
regard to these "vaticinia." There is little ground for 
supposing that, naturally, he was less likely than most 
of his contemporaries to be affected by the spirit of 
prophecy and the eschatological beliefs, which, rarely 
absent in the Middle Ages, were never more widespread 
and more potent in their effect on men's thought, 
political as well as moral, than in the years which fol- 
lowed the fall of the Hohenstaufen 2 . But to have 

1 Vide chap. vn. p. 82: "Novissime autem cliebus istis, postquam 
imperium per annos quasi 32 vacaverat, visitavit Deus plebem suam 
et suscitavit ei principem serenissimum dominum Rudolphum de 
Habsburg comitem. In ejus electione concordi et coronatione solemp- 
nissima sicut Dei gratia cunctis manifestissime apparuit, sic etiam in 
ipsius promotione divinum auxilium nunquam se subtraxit." 

2 On the other hand Schraub, op. cit. p. 35, contrasts the perso- 
nality of the author of Chap. i. — "hinter seinem predigtartigen 
Warnungen und Mahnungen verschwindet ' ' — with that of the author 
of the remaining chapters, who relegates "die Prophezeiungen iiber 
einen kunftigen Weltmonarchen oder Verfolger der Kirche mit ener- 
gischen Worten in das Reich der Fabeln." But the latter author 
shows himself just as credulous as the author of Chap. i. with regard 
to the legend of Antichrist. It seems to me much better to explain 
his attitude here as dictated by the necessity of his theories, than by 
a natural spirit of scepticism, which the rest of the treatise hardly, 
I think, bears out. 



Ill] THE PROBLEM OF THE EMPIRE 245 

expressed anything but scepticism with regard to these 
prophecies would have been to contradict the whole 
tenour of his treatise. The prophecy of a last Frankish 
Emperor, from the blood of Charlemagne, went back 
to the ninth century; the manifold prophecies con- 
nected with Frederick II began to be current imme- 
diately after his death 1 . Now at the date of this 
treatise 2 both prophecies had a real and present sig- 
nificance, when Charles of Anjou was attempting to 
procure a new " translatio imperii," and when the hopes 
of Ghibelline circles were centred on another Frederick, 
the nephew of Frederick II 3 . Our author's plea was 



1 Vide Kampers, Kaiserprophetieen und Kaisersagen im Mittelalter, 
pp. 53-9 and 107 and ft'. 

2 According to Schraub, op. cit. pp. 50-62, it dates from the first 
months of Martin IV s pontificate, probably soon after his coronation. 
The words of the introductory letter, "nuper itaque vacante, etc." 
(vide above, p. 228, n. 4), show that the date must anyhow be near the 
accession of Martin IV — i.e. 1281. 

3 Frederick of Meissen-Thiiringen (1257-1341) — vide for this very 
interesting point Grauert, "Zur deutschen Kaisersage" (in Hist. Jahr- 
buch im Auftrage des Gorres Gesellschaft, vol. xin. 1892), pp. 110-11, 
and especially p. Ill: "Die beiden Kaiserspriiche aber, von denen 
Jordanus uns berichtet, ohne sie selber sich anzueignen, gelten 
nicht einer ferner Zukunft, sondern beziehen sich auf Fiirsten, die in 
jenen Tagen unter den lebenden weilten und in gewissem Sinne als 
die Reprasentanten der grossen Parteien der Ghibellinen und Guelfen 

angesehen werden konnten Es handelt sich einmal um den jungen 

Sprossen des deutschen Fiirstengeschlechtes der Wettiner, Friedrich 
den Freidigen von Meissen-Thuringen, durch seine Mutter Margaretha 
Enkel Kaiser Friedrichs II, und dann um Karl von Anjou, den ersten 
Konig von Neapel-Sizilien aus dem Hause Kapet. In der That sind 
diese beiden Fiirsten, der deutsche Friedrich und der franzosische 
Karl, nicht bloss Rivalen bezriglich des Konigreiches Sizilien gewesen. 
Fxihrende Geister der Ghibellinischen und der Guelfischen Partei haben 
zeitweilig je nach ihrem Parteistandpunkt den einen oder den anderen 
an der Spitze des romischen Imperiums als Kaiser Friedrich III oder 



246 THE PROBLEM OF THE EMPIRE [CH. 

neither for an Emperor Frederick III nor an Emperor 
Charles IV, but for an Emperor Rudolf. That he 
mentions these prophecies is perhaps proof enough that 
they were not without terror for him. A Hohenstaufen 
or a French Emperor, whether bad or good, would be 
fatal, in his opinion, to the salvation of Christendom, 
which was now assured, as he hoped, by the election of 
Rudolf of Habsburg. For to our author Christendom 
is one people, one Church, and within this Church are 
three powers — the Sacerdotium, Imperium and Studium. 
Each of these powers belongs historically and by divine 
will to one of the three principal nations of the 
world, the Romans, the Germans and the Gallici or 
Francigenae. Their concord is necessary to the welfare 
of the Church; and to assure this concord the three 
powers must be distributed among their rightful owners 1 . 
Only thus can Antichrist be warded off. Especially 
necessary is it that the Empire be preserved in the 
hands of the Germans, to whom it was translated, not 
by chance, but by divine ordination and the merit of 
the German princes 2 . He pleads for the continuance 

als Kaiser Karl IV zu sehen gehofft." Vide also Kampers, op. cit. 
pp. 118-23. 

1 Vide Chap. vin. p. 85: "Insuper, ut ego utar opinione singulari, 
cum verecundia audeo sic sentire, quod ad regimen universalis ecclesie 
nichil competentius expediat, quam ut sanctissimus pater Romanus 
pontifex, qui pro tempore fuerit, cliligentiam adhibeat, quod studium 
Gallicorum in suo vigore floreat et fructificet ad confutandum here- 
ticorum versutias et errores, et ut Germanum imperium in suo honore 
dilatetur ad supprimendas gentes et omnes barbaras nationes, et ut 
sacerdotium Romanorum in suo robore subsistat et firmetur ad con- 
gregandos filios ecclesie ad amorem et obedientiam per gratias com- 
petentes et justitiam expeditam." 

2 Vide Chap. n. p. 52: "Ne igitur...humana temeritas immutare 
presumat statum sacri imperii, quod non est dubium Sancti Spiritus 



Ill] THE PROBLEM OF THE EMPIRE 247 

of that concord between the Imperium and the Sacer- 
dotium, which Gregory X's pontificate and Rudolfs 
election seemed to promise. "Sicut ecclesia Romana 
est ecclesia Dei, sic utique regnum est similiter regnum 
Dei." It were amazing if, after the devotion and 
liberality shown by so many Emperors towards the 
Church, the memory of the "regia dignitas" were to 
be deliberately blotted out from the book of the living, 
and if at least once a year a general prayer were not to 
be offered "pro rege vel pro regno Romanorum," as it is 
for Jews and Saracens. God in His own time must 
rank such omission as ingratitude to Himself 1 . Nor is 
the Pope to despise the "secularis conversatio" of the 
German princes, who represent the Sacerdotium of 
Samuel 2 . Then turning to the Germans — "confidenter 
loquor: si Germani principes cum suis fidelibus Romano 

ordinatione secundum qualitatem et exigentiani meritorum humanorum 
gubernari et disponi, videtur expediens, ut quedam antiquitates ex 
multorum scriptis collecte recitentur ad demonstrandum et declarandum , 
quod non eventu vel casu fortuito, sed magna sanctorum principum 
actum est solertia, ut Romanum imperium non apud Romanos 
remanere debuerit vel transferri in Gallicos, sed potius in Germanos." 

1 Vide Chap. vin. pp. 83-5. 

2 Chap. vin. p. 84: "Ipse etiam reges elegit in Israel et electum 
consecravit." This refers of course to the German coronation at Aix, 
as does his mention of Rudolf's "coronatio solempnissima " above 
(p. 244, n. 1), for Rudolf was never crowned Emperor at Rome. And 
it is interesting, in view of our author's enmity to the Hohenstaufen 
and partiality for the Rhineland archbishoprics, especially for Cologne 
(vide below, p. 250 in the legend of S. Maternus), to notice that the 
Imperial policy of the Hohenstaufen, which aimed at obliterating the 
German kingship in the Roman Empire, threatened especially the 
prestige of the Archbishop of Cologne, who stood in the same relation 
towards the German coronation, as the Pope towards the Imperial. 
Vide on this point in the Hohenstaufen policy, Krammer, Die 
Reichsgedanke des staujischen Kaiserhaus, pp. 22-5 and 64. 



248 THE PROBLEM OF THE EMPIRE [CH. 

imperatori tamquam advocato ecclesie fideliter assiste- 
rent, sicut in temporibus preteritis consueverunt, tunc 
absque dubio omnis potestas contraria esset parva, tunc 
non solum Grecia, sed etiam Caldea contremisceret 
cum Egipto. Aves viso flore cantant et letantur, sed 
ad aquile intuitum silent et fugiunt ; sic omnes bar- 
bare nationes aliorum regum insignia despiciunt, sed 
Romanorum et Germanorum aquilas timent naturaliter 
et abhorrent 1 ." 

In the last chapter of the treatise he develops 
this plea for the return to a better order of things, such 
as he hopes the election of Rudolf may presage — the 
Church directed by its three ruling powers, distributed 
each to its proper owner; concord in the German Empire, 
supported, not destroyed, by the German princes; 
and the Roman Papacy content with its spiritual 
supremacy. 

He gives 2 — "velud ab alio inchohandum est ex- 
ordio" — the legend of S. Maternus, whom in an earlier 
chapter he has mentioned as the converter to Christianity 
of the Franci Germani of the Rhineland dioceses. 
S. Peter sent him, with Eucharius and Valerius, from 
Rome to preach the faith in Gaul. When they came 
to Alsace, Maternus died and was buried; the other 
two returned to Rome. But S. Peter sent them back to 
Gaul, giving them his staff, by which they were to raise 
Maternus from the grave. This they did and almost all 
the people of the province were converted. Maternus lived 

1 He adds : ' ' Insuper non est multum animadvertenda Romanorum 
civium consueta et sibi innata discordia, quia, licet ipsi propter amorem 
dominandi et habendi sint discordes, tarn en per Dei gratiam in fide 
catholica tenaeissime sunt Concordes." 

2 Vide Chap. ix. pp. 86-90. 



Ill] THE PROBLEM OF THE EMPIRE 249 

forty years after his resurrection, working miracles and 
converting the people, and though he died in Cologne, 
his body was miraculously translated to Treves. The 
staff of S. Peter, with which he had been raised up from 
the grave, was divided into two, the lower part being 
kept at Treves, where he was buried, the upper at 
Cologne. The author goes on to interpret the legend, 
in which some things are to be taken literally, others 
figuratively. What are we to understand by S. Peter 
but the " regale sacerdotium " ? And what by his 
pastoral staff but the Holy Empire, that is, the " sacer- 
dotale regnum " ? The staff represents the Emperor, 
"terrena se denudans potestate," supporting and honour- 
ing the Pope. By the staff, which raised up Maternus 
from the grave, the wandering sheep is brought back to 
the fold, when the Emperor, "de mandato apostolico," 
brings back the wanderer to the faith by means of the 
material sword. Further, the staff sent by S. Peter 
through Eucharius and Valerius to Gallia Belgica repre- 
sents the Roman Empire translated from the Greeks to 
the Germans in the person of Charlemagne 1 . The church 

1 Vide p. 89: " Sed quid per Petrum apostolorum principem et 
fundamentum ecclesie nisi regale sacerdotium intelligimus ? Et quid 
per baculum pastoralem, per quern pastor sustentatur, ovis errans ad 
ovile reducitur et lupus rapax repellitur, nisi sacrum imperium, id est 
sacerdotale regnum, designatur? Per baculum siquidem pastor sus- 
tentatur, dum Romanus imperator terrena se denudans potestate 
summum pontificem et pastorem omni qua potest reverentia et honore 
sublevat et exaltat. Per baculum etiam ovis errans ad ovile reducitur 
vel Maternus mortuus suscitatur, dum quicumque christiani perversis 
moribus vel scismaticis vel aliis erroribus a Romane ecclesie obedientia 
deviantes, de mandato apostolico per imperatorem materiali gladio ad 
unitatem ridei revocantur. Per baculum insuper lupus rapax repellitur, 
dum inimici christiani nominis auctoritate Romani pontificis per 
Romanum imperium conteruntur. Hunc itaque baculum beatus 



250 THE PKOBLEM OF THE EMPIRE [CH. 

of Treves keeps the lower part of this staff, and Cologne 
the upper, because though Treves is older, it is far less 
in power and merit. For the archbishop of Cologne is 
the first of the electors and at Aix consecrates the king 
of the Romans, in this anticipating the office of the 
Roman Pope, who consecrates the king, once duly elected 
and consecrated, as Emperor. 

Finally, our author again maintains that the trans- 
lation of the Empire to the Germans was not only the 
work of human zeal but, even before it came about, was 
divinely presaged. But the Germans are not to boast 
of this, for they are the more blameworthy, the more 
they withdraw from their due obedience to the Emperor 
and show themselves unworthy of this "regnum ecclesie," 
which their ancestors "a Deo et hominibus sanguine 
proprio meruerunt 1 ." May God, he concludes, by Whose 
providence the whole body of the Church is governed, 
deign to reform the Regnum and Sacerdotium and, 
when reformed, to keep them in concord 2 . 

Petrus Romanus et Antiochenus episcopus per Eucharium et Valerium 
transmisit ad Galliam Belgicam, dum Romanus pontifex per manus 
magnifici Karoli Romanum imperium de Grecis transtulit in 
Germanos." 

1 Vide Chap. x. p. 90: "Manifestum est igitur ex predictis 
omnibus, quod non solum humana solertia ex necessariis et rationa- 
bilibus causis fuit institutum, immo et antequam fieret divina fuit 
prefiguratione presignatum, quod Romanorum imperium in fine 
seculorum transferri oportuit in Germanos. Sed de hoc non est 
ipsis gloriandum, cum tanto magis se ostendant reprehensibiles, 
quanto magis ipsi se ab imperatoris obsequio faciunt alienos ; immo 
ipsi propter suam superbiam et desidiam regnum ecclesie, quantum 
in eis est, vix obtinere poterunt, quod eorum progenitores a Deo et 
hominibus sanguine proprio meruerunt." 

2 Vide Chap. xi. p. 90: "Deus autem omnipotens cujus provi- 
dentia totum corpus ecclesie disponitur et regitur, ita dignetur 
secundum suam voluntatem regnum et sacerdotium reformare et 



Ill] THE PROBLEM OF THE EMPIRE 251 

With the treatise or treatises which go under 
the name of Jordan of Osnaburg's De Praerogativa 
Romani Imperii we may well compare another of very 
similar character, which is known as the Notitia Sae- 
culi. The question of the authorship of the Notitia 
has generally been considered in close connection with 
the question of the authorship of the De Praerogativa. 
This time we have no need to enter into the question 1 . 
There can be no doubt that the Notitia is a single 
treatise, while its date can be fixed with practical 
certainty to January or the first half of February 1288 2 . 
Nor can there be any doubt as to the close connec- 
tion between the treatise and "Jordan of Osnaburg 3 /' 

reformata concordare, ut pacem habeamus diebus nostris et sancta 
ecclesia et fides catholica dilatetur et crescat ad laudem et gloriam 
nominis sui, qui est benedictus in secula seculorum, amen." 

1 Vide for this treatise the works of Wilhelm, G-rauert and 
Schraub, referred to above (p. 230, n. 1) in connection with "Jordan." 
Wilhelm argues for the authorship of Jordan of Osnaburg ; Grauert, 
of Alexander of Roes. Schraub, who, as we have seen, maintains 
Alexander to be the author of chap. n. and the following chapters 
of the treatise, usually ascribed to Jordan of Osnaburg, regards the 
author of the Notitia as unknown. He considers that this unknown 
author made use of the De Praerogativa and that in so doing he 
made considerable additions to it. Vide pp. 6 and ff., and Anhang, 
pp. 121-5. The Notitia Saeculi is printed by Wilhelm in his article, 
pp. 661-75, and I quote from and refer to this edition. 

2 The author tells us (p. 664) that he was writing in the year 1288 
and that the Papacy was vacant after the death of Honorius IV, while 
he mentions Hieronimus of Ascoli, who became Pope as Nicholas IV 
on Feb. 15th, as still only bishop of Palestrina (p. 671). Vide 
Wilhelm' s article, p. 637. 

3 Accepting Dr Schraub 's theory of the different authorship of 
chap. i. and the remaining chapters of the De Praerogativa, this 
will, of course, chiefly apply to the later chapters, since chap, i., on 
this hypothesis, dates from the Interregnum. I have however 
attempted to show that there may still be a large degree of similarity 
in the outlook, and even in the aim, of the two parts of the De 



252 THE PROBLEM OF THE EMPIRE [CH. 

however that connection may have come about. We 
may well consider some significant points of resemblance. 
There are points of difference as well 1 , but funda- 
mentally the two treatises rest upon a similar outlook 
and similar political theories. 

The Notitm Saeculi is intended to deal shortly "de 
cursu seculi et statu reipublicae fidei christiane, id 
est ecclesie Romane 2 ." The author begins by dividing 
all time into five periods — the time of innocence, the 
time of the law of nature, the time of the written law, 
the time of grace and the time of glory. Further, he 
divides the world into three principal parts, Asia, Africa 

Praerogativa since Rudolf's election was not a final solution of the 
problems, with which the author of chap, i., writing in the Inter- 
regnum, was faced. The author of chap. i. might be said to be 
pleading for Rudolf's election, the author of the later chapters to be 
justifying it. Thus, though by "Jordan of Osnaburg" I should 
be understood to be referring in general to the later chapters of the 
De Praerogativa, it should be noted that the points of similarity 
between the two parts of the De Praerogativa will also, at least in 
part, hold good between chap. i. of the De Praerogativa and the 
Notitia. 

1 One point of difference should be noted at once. At the end of 
"Jordan's" treatise we saw him pray for the reform and concord 
of the Imperium and Sacerdotium. The author of the Notitia is 
far more concerned than Jordan with the internal corruption and dis- 
cord of the clergy and especially with the struggle between the regular 
and secular clergies — a very real question at this time, particularly at 
the Universities. The whole of this side of the treatise we shall have to 
pass over, our object being only to illustrate the results of our previous 
inquiries into the theories of "Jordan of Osnaburg." But it ought 
to be kept in mind that this is an integral and important side of the 
treatise, and that it would be necessary to enter into it were we about 
to analyse the work in detail. Vide below, p. 258, n. 1, for a 
passage that will well illustrate this side of the treatise. Vide also 
below, p. 260 and ff. for another point of difference between the two 
treatises, namely their feeling towards the Hohenstaufen. 

2 p. 662. 



Ill] THE PROBLEM OF THE EMPIRE 253 

and Europe, and the human race into Gentiles, Jews 
and Christians. Having ruled out of the five periods of 
time those of innocence, on account of its brevity, and 
of glory, on account of its eternity, he now declares 
that he will leave to others to treat of the periods of 
the law of nature and the written law, and confine him- 
self to the period of grace. Similarly he will confine 
himself to Europe and the "populus christianus 1 ." 

From this we see at once that for the author of the 
Notitia the " State " in the true sense of the word 
no more exists than for "Jordan of Osnaburg." He 
conceives of Christendom as one whole — the "respublica 
fidei christiane" or " ecclesia Romana." This Christian 
republic resides in Europe, but principally in the two 
chief of the four Regna into which he divides Europe 2 — 
the Regnum Romanorum and the Regnum Francorum. 
These two kingdoms are further divided into three 
provinces, Italia, Teutonia and Gallia, inhabited by 
three different races, each with its own national cha- 
racteristics 3 . By divine ordination the three "princi- 
patus" in the Church, the Sacerdotium, Regnum and 
Studium, are distributed among these three provinces. 

' "...pauca intendo breviter et simpliciter prosequi de tempore 
gracie, de terminis Europe et de populo christiano." 

2 Vide p. 666. Europe has four principal Regna — the Greeks in 
the East, Spaniards in the West, Romans in the South, and Franks 
in the North. Among these four principal Regna, those of the 
Franks and Romans are "principaliora." 

3 Vide p. 668. He gives the "mores medii, boni et mali" for the 
three races but concludes: "Verum tamen, quia genus humanum 
pronum est ad malum et quia plures sunt errantes in via morum 
quam viventes virtuose, ideo supradictis provinciis pocius ascribuntur 
mali mores quam boni, ut Italie avaricia et invidia, Teutonie rapacitas 
et discordia, Gallie superbia et luxuria." 



254 THE PROBLEM OF THE EMPIRE [CH. 

The Sacerdotium keeps the faith in Italy, the Regnum 
commands it to be kept in Germany and the Studium 
teaches it to be kept in Gaul 1 . 

The author of the Notitia claims both Charlemagne 
and the Franks as Germans, no less clearly — and with 
no wider a Germany in view — than "Jordan of Osna- 
burg." "Veri et primi Franci sunt populi habitantes 
contra Galliam in Magnutina, Coloniensi et Treverensi 
diocesibus 2 ." Similarly, in a most interesting passage 3 , 

1 Vide p. 668 : "Ex hiis prenotatis rememorandum est, quod fides 
Christiana, id est ecclesia Romana, summa est humani generis et 
ideo per certam ejus mutacionem consideratur principaliter mutacio 
seculorum. Verum res publica ecclesie Romane residet in Europa, 
principaliter tamen in Romano regno et Francorum. Quae regna in 
tres partes dividuntur: hoc est in Italiam, Teutoniam et in Galliam, 
nam pater et films et spiritus sanctus unus deus ita disposuit, ut 
sacerdotium, regnum et studium una esset ecclesia. Cum ergo fides 
Christi hiis tribus regatur principalibus, sacerdotio, regno et studio, 
et sacerdotium fidem teneat in Italia et regnum eandem teneri imperet 
in Teutonia et studium ipsam tenendam doceat in Gallia, manifestum 
est, quod in hiis tribus provinciis principalibus residet res publica fidei 
christiane." 

2 p. 667. 

3 Vide p. 672: " Sufficit igitur, ut eligatur ad papatum Romanus 
vel Italicus clerieus, qui rejecta avaritia et invidia firmus sit in fide, 
fortis in opere, fervens in caritate sicut Petrus, et ad regnum Germanus 
miles, generosus, magnanimus et prudens, sicut fuit Karolus. Has 
enim tres virtutes hec dictio rex in ydiomate Teutonico exprimit cum 
dicitur : cunig, id est generosus vel audax vel sciens. Nee est dubium 
quin Karolus fuisset Teutonicus, licet ipse Gallicos regnaverit. Ipse 
enim lingua materna, id est Teutonica, mensibus et diebus nomina 
imposuit, sicut in actis suis legitur manifeste, et etiam fere omnia 
nomina regum Francie inveniuntur Teutonica, ut Hildericus, 
Theodericus, Dagobertus...que in lingua Gallica nichil nisi personarum 
denominacionem significant, sed in Teutonica eorum interpretacionem 
faciliter exponerem, si Gallicorum derisionem non timerem. Unde 
non dedignet Francia minor se habere regnum reges et regum nomina 
a Francia majore, que sic ordinante providencia dei per ministerium 
principum in sortem regni Romanorum est translata, quia sicut Franci 



Ill] THE PROBLEM OF THE EMPIRE 255 

he maintains that not only was Charlemagne a German, 
but that nearly all the names of the "French" kings 
are actually German — "que in lingua Gallica nichil nisi 
personarum denominacionem significant, sed in Teu- 
tonica eorum interpretacionem faciliter exponerem, si 
Gallicorum derisionem non timerem." France is "Francia 
minor." To "Francia major," that is Germany, the 
Regnum Romanorum has been translated "ordinante 
providencia dei per ministerium principum." To our 
present author, as to "Jordan of Osnaburg," the "French" 
are Gallici as well as Francigenae. Charlemagne was 
a German, though he ruled over Gallici. The original 
" regnum Francorum " was so called from the "primi 
Franci," that is the Franks of the Rhineland arch- 
bishoprics. Henry I, "dux Saxonie, Romanorum rex," 
was the first who divided up this kingdom, uniting 
"prima Francia," which he called Lotharingia in honour 
of his uncle, all Teutonia, the county of Burgundy 
and the kingdom of Aries to the Roman Empire, and 
leaving "Francia minor cum Galliis circumjacentibus" 
to the heirs of Charlemagne, who now call themselves 
" reges Francorum " and succeed to their kingdom by 
heredity. The kings of the "primi Franci" are elective 
and call themselves a digniori kings of the Romans 
and future Emperors 1 . 

sunt Germani Romanorum, ita Francigene geniti sunt Francorum ; 
Romani igitur sunt radix, Germani stirpes et Gallici sunt rami arboris 
flores et fructus honestatis producentis." 

1 Vide pp. 667-8: "Ex hiis patet, quod regnum Francorum a 
primis Francis dictum est. Sed hoc regnum Henricus dux Saxonie 
Romanorum rex hujus nominis primus dividens primam Franciam, 
quam ipse in honorem Lotharii regis Francorum et imperatoris 
Romanorum, sui avunculi, Lotharingiam appellavit, cum tota 
Teutonia Burgundie comitatu et Arelatensium regno Romano univit 



256 THE PROBLEM OF THE EMPIRE [CH. 

Here then again, if there is some confusion as to the 
origin of the French — whether Gallici or Francigenae — 
the answer is plain enough. The author of the Notitia 
recognises, as distinctly as " Jordan," the kings of France 
to be the heirs of Charlemagne. But they are heirs to 
his kingdom, not to his Empire, nor to those border 
provinces of Lorraine 1 , Aries and Burgundy, which he 
holds Henry to have united to the Empire and on 
which, we may remember, French policy was already 
casting covetous eyes. 

The period of grace, which, as we saw, was the only 
period with which our author proposed to deal, he 
divides, on the authority of the theologians, into four 
subordinate periods 2 . Of these the first two are the 
periods of persecution under the Gentiles and heretics 
respectively. These again he puts aside and resolves 
to confine himself to the two remaining subordinate 
periods — that "in quo clerus tribulabitur a christiano 
populo propter peccata sua" and that "quando veri 
christiani per totum orbem persecucionem pacientur 
sub antichristo." We must leave aside the first of 
these and confine ourselves to the second, which more 
properly concerns us. We are in a period, we may 

imperio....Ac heredibus Karoli predicti Franciam minorem reliquit 
cum Galliis circumjacentibus, quorum reges se modo Francorum 
reges appellant et succedunt ex hereditate. Primi vero Franci reges 
suos eligunt ex dignitate et eos a digniori reges Romanorum, futuros 
imperatores appellant." 

1 Cf. "Jordan," chap. iv. p. 36: "Verum qualiter dictum regnum 
Francorum divisum fuerit in Franciam, Lothringiam et in Germaniam, 

t qualiter Lotharingia devoluta fuerit ad Germaniam etc." and cf. 
chap. vi. p. 75, though this latter passage is according to Schraub 
(op. cit. p. 8) one of the interpolated passages. 

2 Vide p. 663. 



Ill] THE PROBLEM OF THE EMPIRE 257 

repeat, of widespread prophecies and eschatological 
beliefs. Whatever we may think of the scepticism of 
the author of the later chapters of the De Praerogativa, 
there is no doubt as to our present author's attitude. His 
division of the period of grace is given on the authority 
of the theologians, but the authority, to which he speci- 
ally refers, is the author of a book called De Semine 
Scripturarum, ascribed to the famous Joachim, Abbot 
of Fiore, though actually, it appears, written after his 
death 1 . Our author is thus under the influence of one 
of the most powerful sources in the mystical and pro- 
phetic literature and thought of his age and of many 
years yet to come. 

He begins by doubting the possibility or propriety 
of questioning when the advent of Antichrist is to be, and 
notes, among other things, that "apostolus dicit, quod 
nullatenus Antichristus veniet, nisi Romanum imperium 
penitus est ablatum 2 ." He recalls the prophecy, which 
he has already mentioned, of the De Semine Scriptu- 
rarum, that the "tribulacio symoniacarum," the purging 
of the Church and the recovery of the Holy Land are 
to come within the next twenty-seven years. The 
Church thereafter will remain for some time in peace 
and purity, till peace brings riches and riches luxury, 
and the old disorders return again more grievous than 
before. Then perhaps, he continues, the Roman Church, 
"auxilio Gallicorum," will wholly destroy the Roman 
Empire, which it has now destroyed in part. And then 
Antichrist will come and those, who have helped to 

1 Joachim died in 1202, the book was written in 1205, according 
to Schraub, op. cit. p. 99, who gives references. 

2 Vide pp. 672-3. He refers of course to II Thess. 2. 

w. 17 



258 THE PEOBLEM OF THE EMPIRE [CH. 

destroy the Empire, will feel the ill of it. For Anti- 
christ can never come while the Church is defended 
"in temporalibus" by the Empire and has the Studium 
to aid it "in spirit ualibus." Let the Pope beware lest 
he destroy the Imperium, as the king of France lest the 
Studium be dissolved 1 . 

The author gives elsewhere 2 another division of 
time, on the authority of the " antiqui sapientes," into 

1 Vide pp. 673-4 : " Et forte Eomana ecclesia imperium Komanum, 
quod nunc pro parte destruxit, auxilio Gallicorum tunc in totum 
destruet. Quo destructo tunc in annorum centenario, qui currere 
incipiet anno a nativitate Christi millesimo CCCC° quinto decimo, 
nascetur Antichristus et est notabile, quod quia clerici et Gallici nunc 
parte magna Romanum destruxerunt imperium, ideo in hoc tempore 
super eos venit et veniet magna tribulacio. Quando vero ipsi in totum 
destruxerunt imperium, tunc tanta et talis veniet omnium christia- 
norum tribulacio, quanta et qualis ab inicio non fuit neque net... quia 
nullatenus veniet Antichristus, quam diu ecclesia Romana imperium 
habet defensorem in temporalibus et studium Gallicorum in spirituali- 
bus ad jutorem.... Caveat igitur papa ne destruatur imperium et caveat 
rex Francie, ne studium dissolvatur, quia instigante diabolo ad utrius- 
que destructionem jam sub boni specie laboratur. Sicut Christus non 
venit, nisi prius destructum esset regnum Judeorum, ita Antichristus 
non veniet, nisi prius destruatur regnum Romanorum. Dicebant olim 
summi sacerdotes: Regem non habemus nisi cesarem, et modo dicent 
summi sacerdotes: Regem non habemus nisi papam. Sicut enim 
clerici seculares affectant habere prerogativam potencie secularis, ita 
fratres regulares affectant habere prerogativam scientie naturalis, et 
sicut clerici seculares postponunt regulam theologicam vivendo, ita 
fratres regulares postponunt scienciam theologicam disputando et 
studendo, ex quibus potestas imperii in impotentiam et sciencia studii 
in heresem convertetur, et hec sunt preambula Antichristi." We have 
quoted this passage at length, because it well illustrates a side of the 
treatise (vide above, p. 252, n. 1) which finds little or no parallel in 
"Jordan." One sees how significant the idea of the Studium as a 
third governing ' ' power ' ' in the Church becomes in connection with 
our author's concern at the discord between the secular and regular 
clergies. 

2 pp. 664-6. 



Ill] THE PROBLEM OF THE EMPIRE 259 

periods of forty-nine years. According to this mode of 
reckoning, he finds that the period between the con- 
secration of Frederick II in the year 1220, when the 
Roman Empire was "in statu potissimo 1 ,'' and the second 
council of Lyons, held by Gregory X, was a period in 
which the Empire so declined, " quod ejus vix habebatur 
memoria, et econtra in tantum Romanum creverat sacer- 
dotium in temporalibus et in spiritualibus, quod ad 
pedes Romani pontificis non solum populus christianus 
et prelati ecclesiastici, sed etiam reges mundi, Judei, 
Greci et Tartari convenientes recognoverunt Romano 
sacerdotio mundi monarchiam." And so he foretells for 
the next fifty years, near the beginning of which he is 
writing, the contrary process, since the Empire could 
not decline further, unless it be entirely destroyed, nor 
the Papacy advance to greater power, unless "abjecta 
auctoritate apostolica in regalem potestatem conver- 
tatur." He sees the change foreshadowed in " those 
two princes of the world, Gregory X and Rudolf I." 
That there have been ten Gregories and one Rudolf 

1 There is some doubt as to the right reading here. Wilhelm 
reads: "Si igitur tempora preterita revolvimus, invenimus quod 
ab illo tempore, in quo Fredericus secundus consecratus fuit ab 
Honorio II a. d. MCCXX in statu potissimo Romanum tenuit imperium 
usque ad ultimum concilium...." Something is clearly missing 
between "MCCXX" and "in statu." In Wilhelm' s apparatus 
criticus we find that two mss give "qui"; but as Schraub, op. cit. 
p. 86, points out, "qui" makes the author contradict himself , since 
he cannot say that Frederick II " in statu potissimo tenuit imperium," 
if at the same time he dates the Empire's decay from Frederick's 
consecration. Schraub therefore proposes "in quo," which fits the 
context excellently: i.e., the year 1220 is the year in which the 
Empire both reaches its high-watermark and the decline of the next 
fifty years begins. This, from the whole context, is evidently what 
the author means. 

17—2 



260 THE PROBLEM OF THE EMPIRE [CH. 

means that the "unitas imperii sive regni ascendere 
debeat ad numerum denarium et denarius sacerdotii 
descendere debeat ad unitatem." Or, if human malice 
impedes this revival of the Empire, it can only mean 
that the time has come when the ten tyrants (who in 
the Antichrist legend are to secede from the Empire 
before the coming of Antichrist) will arise, and the 
" clericalis ordo " suffer accordingly. But looking back 
at the years which have passed since the second council 
of Lyons, noting how the temporal and spiritual power 
of the Church has decreased and how the power of 
the Empire has increased, our author has no doubt 
that the latter is to grow still greater as the former 
grows less. 

This is interesting in many ways. It shows, to 
begin with, that the author does not share " Jordan's " 
hatred of the Hohenstaufen 1 . He dates the decline of 
the Empire from Frederick II — "Jordan" dated it 
from Frederick Barbarossa — but for this he blames 
rather the Popes than the Emperors. At least, at 
Frederick II's consecration the Empire was at the 
height of its power ; nor do we hear anything, as with 
" Jordan," of the Hohenstaufen's partiality for the 
" ulteriores Almani." The author's attitude towards 
the Hohenstaufen is clearly shown by a curious poem 
which concludes his treatise 2 . It is an allegorical 

1 In "Jordan," however, we find in one ms a long passage in 
chap, vi., printed by Waitz, pp. 79-81, in the apparatus criticus, which 
is a very pro-Hohenstaufen account of Frederick II's relations with 
the Papacy and Holy Land. There can be no doubt that this is an 
interpolation, since it is in flat contradiction to the rest of the chapter. 

2 Vide p. 675 : " Sed inter jam dicta et dicenta libet hie metricam 
illam interserere parabolam, quam alias ante terminum scrips! , cujus 



Ill] THE PROBLEM OF THE EMPIRE 261 

account of the first Council of Lyons, at which 
Innocent IV deposed Frederick II. The poem is called 
the Pavo. The peacock is the Pope, who conspires 
against the eagle, the king of birds, who, of course, is 
the Emperor 1 . 

"Anxia mens igitur dominandi fervet amore, 
ferventerque studet quo fine sequatur amatum. 
Tandem complacuit prorsus generale gregari 
concilium, quo possit aves involvere cunctas 2 ." 

The council meets and the peacock claims 

"...quod nobis debetur honos dominandi 3 . 



Et sic competeret nobis imponere leges 
omnibus et nemo regnare potest sine nobis 4 ." 

The eagle is cited to appear and he is defended " man- 
date) sufficienti" by the crow and the daw (corvus and 



figure et similitudinis plene et perfecte intelligence proprietates gentium 
et ordinum et causas perturbacionum universalis ecclesie declarabunt." 
The poem is not printed by Wilhelm and I shall therefore quote from, 
and refer to, it as printed by Kara j an, who has printed both the 
Notitia and the poem in his article ' ' Zur Geschichte des Concils von 
Lyon 1245" (in Denkschriften der Kaiserlichen Akademie der Wissen- 
schaften, PhUosophisch-Historische Classe, Vienna, vol. n. 1851), 
pp. 111-17. 

1 The key to the poem is given as follows after the Prologue 
(p. Ill): "Pavo: papa; columbe: cardinales et episcopi; palumbes: 
abbates albi et nigri ; turtur : abbates cistercienses ; anser et anas : 
cives et burgenses ; passeres : differentie clericorum ; irundo : ordines 
mendicantes ; corvus : laici et clerici gebelini ; capo : episcopus 
gallicus; gallus: rex gallicorum; pica: guelfi, picardi, normanni, 
britones et alia genera gallicorum; aquila: imperator; alie aves 
rapaces : teutonici et alemanni ; bubones : greci ; milvi : seculi ; 
falcones : hispani. ' ' 

2 p. Ill, lines 19-22. 3 p. 114, line 138. 
4 p. 114, lines 146-7. 



262 THE PROBLEM OF THE EMPIRE [CH. 

monedula) 1 . But to no avail: 

" Sed lex, 
nee canon, neque commentum, neque glossa tuentur 
absentem, quia mox in eum sententia currat, 
et condempnatus cuncto privetur honori. 
Unde monedula garrula, provida taliter orsa est : 
'Ista dies, maledicta dies et causa timoris ! 
Ista dies, ubi nulla quies, ubi virga furoris! 
Conveniant et condoleant inopes et habundi 
nunc timeant et nunc fugiant pariter tremebundi 2 . ' " 

The author of the Notitia thus shows himself a 
partisan of the Hohenstaufen. In the poem the peacock 
and other birds are considered rebels 3 against the rule 
of the eagle — those who 

"nolebant aquila regnante modeste 
conregnare, sibi contenti finibus illis 
quos natura dedit," 

and will, by provoking schism, destroy the Regnum and 

1 Vide p. 115, lines 195-8 : 

' ' Monedula , corvus , 

quelibet in totum mandato sufficienti 

comparent, aquilam defendentes meliori 

quo possunt jure, tutorum nomine." 

The Pavo had said (p. 113, lines 83 and ft.), 

"Expedit ergo via procedere juris et ipsum 
citare, ut veniat promptus etc." 

2 p. 115, lines 198-206. 

3 Vide lines 219-24, p. 116 : 

' ' Si aquilam primo nature conditione 

deserit obsequium pennarum, postea vero 

juribus ablatis sors totis viribus ipsam 

dejicit, ac inter pedes incedere jussit, 

pavoni tribuens jus imperio dominandi 

cum prius obtentis. Sic transit gloria mundi!" 
The Pavo himself is looked on as the leader of the rebels — vide lines 
17-18, p. Ill: 

"Namque feras jam pensat aves superare potentes 

ut rex, quern timide fecere patrem sibi sponte" 
(i.e., the other rebel birds). 



Ill] THE PROBLEM OF THE EMPIRE 263 

receive their due punishment from the tyrants, whom 
they preferred to their own true king 1 . 

But, none the less, if we return to the passage in 
the Notitia itself, which we considered above, we see 
that our author is no more pleading for the Hohen- 
staufen idea of the Empire than was " Jordan of Osna- 
burg." He may, in marked contrast to " Jordan," be 
favourable to the Hohenstaufen, but the Empire, for 
which he pleads, is not their Empire, the civilian's 
Empire, centred in Italy, a world-wide State. His 
Empire is the old "regimen ecclesiae," one of the 
governing powers of the " respublica christianae fidei." 
He too, like "Jordan," looks back to the election of 
Rudolf as to the beginning of a more hopeful time. 
Though in this one passage he foretells a time of 
decadence for the Sacerdotium, and seems to regard 
the alternate rise and fall of the Imperium and Sacer- 
dotium as necessary, elsewhere, and generally in his 
treatise, he too is pleading for concord between the three 



1 Vide p. 117, lines 263-72 : 

"Porro quis finis hiis principiis mediisve 
conveniat, verax determinat auctor et inquit : 
Regni scissuram sequitur destructio regni, 
destructo regno veniunt pro rege tyranni, 
qui penam sceleris reddant auctoribus equam, 
ut qui nolebant aquila regnante modeste 
conregnare, sibi contenti finibus illis 
quos natura dedit, discant moriendo rebelles 
bubones milvos et falcones peregrinos, 
quos illis Grecus, Calaber transmisit et Hesper!" 
Wilbelm (pp. 650-1) considers these lines a decisive proof that the 
poem could not have been composed by the author earlier than the 
Sicilian Vespers of 1282, to which, he thinks, they must refer. Cf. 
p. 670 of the Notitia. 



264 THE PROBLEM OF THE EMPIRE [CH. 

powers and their proper distribution among their three 
rightful owners. Especially necessary is it that the 
Imperium should be in the hands of a German — 
" Germanus miles, generosus, magnanimus et prudens, 
sicut fuit Karolus " — and the Sacerdotium in the hands 
of a Roman or Italian — <( firmus in fide, fortis in opere, 
fervens in caritate sicut Petrus 1 ." He points to the 
terrible disasters which have overtaken Frenchmen 
under the pontificate of the French Pope, Martin IV, 
"qui ob amorem gentis sue turbavit ecclesiam dei 
totam, volens totum mundum modo Gallicorum regere 2 ." 
Similarly the clergy and Gallici together have in part 
destroyed the Empire, and when they have succeeded 
in doing so altogether, the great "tribulation" under 
Antichrist will follow 3 . "Non enim ociose, ut credo, 
Spiritus Sanctus ordinavit, quod apud Romanos sacer- 
dotium et apud Germanos esset regnum 4 ." Together 

1 Vide above, p. 254, n. 3. 2 p. 670. 

3 In the Pavo also the alliance of France (Gallus) and the Papacy 
(Pavo) in destroying the Empire is clearly brought out. The Gallus 
is made (unhistorically) to attend the Council : 

"Pavo gratulans suscepit ad oscula gallum" 
(p. 112, line 42). Then later : 

"Hiis mediis gallus et cum pavone columbe 
funiculum nectunt triplicem qui dissociari 
non queat ex facili, spondentes pondere firmo 
auxiliis et consiliis relevari vicissim " 
(p. 115, lines 191-4). And vide lines 248-50, p. 116 : 
' ' Ipse etiam pavo galloque superveniente 
plumas et pennas aquile rapiebat, easque 
alis et caude proprie religare studebat." 

4 Vide p. 671 : " Et revera propter hoc summopere videtur expedire, 
quod ad sacerdotium et ad regnum ecclesie catholice, que utraque 
tamquam dei sanctuarium jure hereditario possideri non convenit, 
eligeretur ad sacerdotium quidam Romanus vel saltern Italicus et ad 
regnum Germanus. Non enim ociose, ut credo, Spiritus Sanctus ordi- 



Ill] THE PROBLEM OF THE EMPIRE 265 

these three nations are a tree producing " flores et 
fructus honestatis," of which the Romans are the root, 
the Germans the stem and the Gallici the branches 1 . 
Elsewhere he compares them to a family. The Pope — 
" quia summa universalis regiminis ad Romanam revol- 
vitur ecclesiam " — is the dutiful and prudent father, 
the Gallici an obedient son, the Germani a brother " de 
pari contendens," the Italians or Romans a recalcitrant 
son 2 . 

We have spent many pages in considering these 
treatises, their fears and forebodings and their interpre- 
tations of an often somewhat doubtful history 3 . They 
have none of the practical spirit of the lawyers or of 
the subtlety of the Aristotelians, to whom we are now 
to turn. Yet the study of these treatises is in no 

navit, quod apud Romanos sacerdotium et apud Germanos esset 
regnum. Istud autem ego dico non supponens necessitatem, sed 
insinuans congruitatem, quia multi de Gallia, de Grecia et aliis mundi 
partibus viri sanctissimi adeo vocati sunt ad papatum, et plurimi 
Romanorum non solum ad papatum, immo etiam ad minora officia, 
inveniuntur minus habiles etc." He goes on to give a practical 
example of a Roman legate who, by bis tactlessness, raised all 
Germany against himself. 

1 Vide above, p. 254, n. 3. 

2 Vide p. 670 : " Et quia summa universalis regiminis ad Romanam 
revolvitur ecclesiam, ideo Romanus pontifex tamquam pius et prudens 
pater f amilias regere debet gentem Gallicam tamquam filium obedientem 
et gentem Teutonicam sive Germanorum, quod est unum, tamquam 
f ratrem de pari contendentem et gentem Italicam sive Latinam tamquam 
familiam recalcitrantem et alias mundi naciones tamquam proximos 
et vicinos." The "alii mundi naciones" must be those outside the 
Church, non-Christian nations. 

3 It is worth noting that the author of chap. vin. of the De 
Praerogativa confesses ' ' in precedentibus ab aliquorum scriptis in 
quibusdem deviasse; sed sicut ipsi ex suis originalibus credunt veri- 
tatem excerpsisse, sic ego nullam puto admiscuisse falsitatem, petens 
cum humilitate veniam de erratis." 



266 THE PROBLEM OF THE EMPIRE [CH. 

way lost labour. They may give us nothing that can 
properly be called scientific political theory, but they 
give us our first answer to the problems, which the 
fall of the Hohenstaufen Empire had left for solution. 
They give us the German answer. Its full significance 
will appear, when we have considered other answers 
given to these same problems by writers of other 
nationalities. 

We have seen that for the authors of these treatises 
the " State " does not really exist. Mankind or 
Christendom forms a single Church, a Christian Re- 
public or People, within which are different nations 
and kingdoms. Therefore the Imperium, for the 
maintenance of which in German hands they plead so 
earnestly, is not a universal "State," but the "Gelasian" 
Imperium — a ruling power within the Church. Their 
thought was unaffected alike by the political theories 
of the Roman lawyers, as by political theories still 
newer. Aquinas was dead before these treatises were 
written 1 , so that already the political theories of Aris- 
totle had begun that new life, which was to be of such 
lasting importance in the history of thought. We find 
no trace of such theories in these treatises. 

We have already referred more than once to the 
influence of Aristotle's Politics, as they entered medieval 
political thought under the guidance of Aquinas and 
his followers. We pointed out in the last chapter that 
for the Aristotelian the " State " meant the " Civitas " or 
"Regnum." The Roman lawyers came to this conclusion 

1 This will not apply of course to chap. i. of the Be Praerogativa, 
if we accept the theory that chap. i. and the remaining chapters are 
of different dates and by different authors. 



Ill] THE PROBLEM OF THE EMPIRE 267 

independently, and only after a long process of reason- 
ing, whereby the Civitas or Regnum was invested with 
one after another of the peculiar marks and privileges 
of the one true "State," the Roman Empire — until 
the Civitas and Regnum were themselves recognised as 
Empires in miniature, "sibi principes," and so "States." 
It is very important to observe that the State, in the 
modern sense of the word, has two independent origins: 
that it is both the Empire on a reduced scale and the 
older, self-sufficient, non-universal ttoXls. Clearly the 
way was now open to a great advance in political 
thought. It was laboriously and against their will that 
the lawyers had raised up the Civitas and Regnum, 
from their original dependent position, to an inde- 
pendent and equal position with the one original world- 
state, the Empire. But, starting from Aristotle's 
Politics, the recognition of the ttoXls (whether trans- 
lated by Civitas or Regnum) as the " State," so far 
from presenting difficulty, would seem a necessary 
conclusion. 

Yet in actual fact the modern State did not leap 
ready-made, nor at once, from the pages of the revived 
Aristotle or of his interpreters. Many obstacles were 
still to be overcome, before the modern State, either of 
theory or fact, could exist. Let us remember that we 
are still in the thirteenth century. Aquinas himself, his 
great pupil Egidius Romanus, and perhaps the greater 
number of the early exponents of the new political 
thought, were unhesitating supporters of the Papacy 
in its most extreme claims to political power. If, then, 
the idea of the State, as a secular, non-universal com- 
munity and as the highest of all communities, became 



268 THE PROBLEM OF THE EMPIRE [CH. 

prominent through the re-introduction of Aristotle's 
Politics, it was not, as it is perhaps needless to say, 
because they looked on the State as a means to merely 
secular ends or because they desired to limit the Papal 
power in any particular. 

In the first place they adopted without hesitation 
Aristotle's dictum that man is naturally a political 
animal ; they saw in Government a necessary conse- 
quence of man's innate tendency to live in society — 
a tendency which finds its completest satisfaction in 
the State 1 . The State is founded by a natural im- 
pulse of "human industry 2 ," and political government 
is distinguished from slavery. Both are natural: but 
while political government is natural in a primary 
sense, and would have come into existence if mankind 
had never fallen, slavery is a result of the fall 3 , natural 
in a secondary sense, as deduced by human reason 
on grounds of utility 4 . But then, though both sorts 

1 Vide Aquinas, Commentary on Aristotle's Politics, i. Lectio 1, 
where he comments on this dictum of Aristotle. Vide p. 3 of the 
edition printed at Venice 1568, containing both his Commentary on 
the Politics and his treatise De Regimine Principum (though with 
separate pagination) to which I shall refer in the following notes. 
It should be remarked that the Latin version of the Politics, given in 
this edition, is the later version of Leonardo Aretino (1370-1444), not 
the " vetus versio," which however will be found separately in this 
edition. 

2 Vide Aquinas, Commentary on Aristotle's Politics, i. Lectio 1, 
p. 3 verso: "Agit de institutione civitatis, concludens ex praemissis, 
quod in omnibus hominibus est quidam naturalis impetus ad communi- 
tatem civitatis, sicut et ad virtutes. Sed tamen sicut virtutes acqui- 
runtur per exercitium humanum, ut dicitur in secundo Ethicorum, ita 
civitates sunt institutae humana industria." 

3 Vide Aquinas, De Regimine Principum, in. 9 (this is in the part of 
the treatise which was added by a later hand — vide below, p. 269, 
note 1), p. 14. 

4 Vide Aquinas, Summa Theologica, n. 1. 94. 5, p. 194. 



Ill] THE PROBLEM OF THE EMPIRE 269 

of dominion are natural, they are also divinely or- 
dained. In the continuation of Aquinas' treatise Be 
Regimine Principum 1 this is discussed at length 2 . He 
shows how all dominion is from God 3 — sometimes, as 
in the case of the Romans, granted as the reward of 
virtue 4 , at other times as punishment for sin: the 
second case applies equally to slavery and political 
dominion 5 . 

Then with regard to the aim of the State and 
Government. It is scarcely necessary to point out 
that to Aquinas, "the first Whig," and to those who 
followed him, the raison d'etre of Government is the 
good of the governed 6 . The ruler who seeks his own 
good is a tyrant, not a king. The king's is a divine task. 
" Magnitudo regiae virtutis apparet quod praecipue 

1 According to Baumarm, Die Staatslehre cles h. Thomas von 
Aquinas, pp. 5-6, only Book i. and the first four chapters of Book n. 
are by Aquinas himself, and this seems generally accepted. The 
author of the latter part is generally held to be Aquinas' pupil, 
Ptolemy of Lucca. 

2 In Book in. vide chaps. 1-9. 3 Vide chaps. 1-3. 

4 Vide chaps. 4-6. Dominion was granted the Romans on account 
of their "amor patriae," the "zelus justitiae" shown in their laws, 
and their "singularis pietas et civilis benevolentia." 

5 Vide chaps. 7-8. The idea of tyranny as an instrument of 
punishment, allowed by God both on the sinning people and on the 
tyrant himself, is well expressed in a few lines by an Italian poet of 
the fourteenth century, Bindo Bonichi. The lines form an excellent 
commentary on these two chapters — "Iddio permette regni lo tiranno 
Accio che opprima il popol peccatore, Non gia per ben di lui ma per 
suo danno ; Suscita dopo lui un ch' e peggiore, Che il fa morir o ver 
languir d' affanno: E in questo modo il punisce il Signore." The 
poem from which these lines come is printed in Carducci's selection, 
Rime di 31. Cino da Pistoia e d' altri del Secolo XIV, pp. 154-5. 

6 Vide Aquinas, De Begimine Principum, i. 1, p. 1 verso : "Rex est 
qui unius multitudinem civitatis vel provinciae et propter bonum 
commune regit." 



270 THE PROBLEM OF THE EMPIRE [CH. 

Dei similitudinem gerit, dum agit in regno quod Deus 
in mundo x " ; and as his task is greater than other 
men's, so will be his reward in another life. But then, 
once terms like " good " and " virtue " were postulated 
as the end of Government, they could, in the Middle 
Ages, be interpreted ultimately in none but a Christian 
sense. Aristotle in a famous phrase had said that 
the State comes into existence rod £r}v evexev, but 
exists rod €v %r)v evexev. There were of course 
several points at which the Greek " good life " and 
" virtue " could meet the Christian : but there was 
this fundamental difference. To Aquinas the good 
life must inevitably be interpreted with final reference 
to another existence ; the good life could not be an end 
in itself, as it was to the Greeks. This is a distinction 
of immense importance, since it left the way open 
for the Papalist's insistence on the superiority of the 
Sacerdotium above all secular governments. Two 
things, says Aquinas 2 , are necessary for the good life 

1 Vide Aquinas, Be Regimine Principum, i. 9, p. 4. Cf. chap. 12, 
p. 5 : "Hoc igitur officium rex se suscepisse cognoscet, ut sit in regno 
sicut in corpore anima et sicut Deus in mundo." Cf. Egidius 
Romanus, Be Regimine Principum, in. Part 2, chap. 6, pp. 465-7. 

2 Vide Be Regimine Principum, i. 14 and 15. The whole of these 
chapters should be seen, but the following quotation from chap. 14, 
p. 5 verso illustrates the line of argument: " Sed quia homo vivendo 
secundum virtutem ad ulteriorem finem ordinatur, qui consistit in 
fruitione divina, ut supra jam diximus, oportet eundem finem esse 
multitudinis humanae, qui est hominis unius. Non est ergo ultimus 
finis multitudinis congregatae vivere secundum virtutem sed per vir- 
tuosam vitam pervenire ad fruitionem divinam. Siquidem autem ad 
hunc finem pervenire posset virtute humanae naturae, necesse esset 
ut ad officium regis pertineret dirigere homines in hunc finem.... Sed 
quia finem fruitionis divinae non consequitur homo per virtutem 
humanam, sed virtute divina, juxta illud Apostoli Ro. 6 (Romans, 



Ill] THE PROBLEM OF THE EMPIRE 271 

of man — the principal, which is virtue, and the secon- 
dary, which is sufficiency of temporal goods, and which 
is instrumental " ad actum virtutis." Unity moreover 
is a necessary preliminary to all good action ; the unity 
of a man is natural, the unity of a multitude of men — 
" quae pax dicitur " — it is the task of the ruler to pro- 
cure. Thus the State exists for three main purposes : 
to keep this multitude " in imitate pacis," to direct it by 
the bond of peace to good action ; to supply the material 
provision which makes this good action possible. But 
virtue itself is not the ultimate aim of man, rather "per 
virtuosam vitam pervenire ad divinam fruitionem." 
Now, since it is not human virtue, but divine grace, 
which leads men to this ultimate end, the power that 
guides men thereto is not a human but a divine u regi- 
men" — the " regale sacerdotium " of Christ and His 
vicar, the Pope. The end of the State, then, is " vitam 
multitudinis bonam procurare secundum quod congruit 
ad caelestem beatitudinem consequendam." But it is 
from the " lex divina," the teaching of which belongs 
to the Sacerdotium, that men can learn the way to 
this "celestis beatitudo": therefore the final authority 
in politics must rest with the Pope, as the power which 

chap. 6) 'Gratia Dei, vita aetema,' perducere ad ilium finem non 
humani erit, sed divini regiminis. Ad ilium igitur regem hujusmodi 
regimen pertinet, qui non est solum homo, sed etiam Deus, scilicet ad 
dominum nostrum Jesum Christum, qui homines filios Dei faciens in 
caelestem gloriam introduxit....Hujus ergo regni ministerium, ut a 
terrenis essent spiritualia distincta, non terrenis regibus, sed sacer- 
dotibus est commissum, et praecipue summo sacerdoti successori Petri 
Christi Vicario Romano Pontifici, cui omnes reges populi Christiani 
oportet esse subditos, sicut ipsi domino Jesu Christo. Sic enim ei, ad 
quern finis ultimi cura pertinet, subdi debent illi, ad quos pertinet cura 
antecedentium finium, et ejus imperio dirigi." 



272 THE PROBLEM OF THE EMPIRE [CH. 

directs to this final end, rather than with the king, 
to whom belongs merely the ordering of those means 
which contribute to the final end 1 . 

Beside the universal Papacy and Church, whether as 
a theory or a fact so entirely foreign to the world of Aris- 
totle, the thirteenth century also possessed the theory, 
if not the fact, of a universal Empire, equally foreign to 
Aristotle and his world 2 . But while the universal Church, 

1 Vide Be Regimine Principum, i. 15, p. 5 verso: "Quia igitur 
vitae, quam in praesenti bene vivimus, finis est beatitudo caelestis, ad 
regis officium pertinet ea ratione vitam multitudinis bonam procurare 
secundum quod congruit ad caelestem beatitudinem consequendam, ut 
scilicet ea praecipiat, quae ad caelestem beatitudinem ducunt, et eorum 
contraria secundum quod fuerit possibile interdicet. Quae autem sit 
ad veram beatitudinem via, et quae sint impedimenta ejus, ex lege 
divina cognoscitur, cujus doctrina pertinet ad sacerdotum omcium etc." 
It is not to be suggested, of course, that the Papal supremacy was 
maintained only by this line of argument. Innumerable other argu- 
ments could be adduced — the need of one final authority in matters of 
faith, the analogy of the supremacy of particular bishops in particular 
' ' populi ' ' to the supremacy of the one head of the whole Church in 
the whole Christian people, etc. Vide e.g. Aquinas, Summa contra 
Gentiles, iv. 76. 

2 It is noticeable that in commenting on the passage in Aristotle's 
Politics, iv. (according to the old arrangement of the books vn.) 7, in 
which Aristotle maintains the superiority of the Greek race, as occupy- 
ing an intermediate position between the northern races and the 
Asiatic — dioirep eXeOdepou re StareXet /cat ^eXriara TroKi.Tevbp.evov koX 
8vvdp.evov apxew Travrwv pids rvyxdvov TroXireias — Aquinas seems to 
take this last expression in the sense of a World-monarchia, as the 
Middle Ages understood the term ; and a long argument is necessary to 
explain the historical fact that the Greeks had by no means always 
shown their superiority by the possession of this ' ' monarchia. " " Sed 
contra ista argueret aliquis rationaliter, quod cum ea quae sunt natu- 
ralia, semper vel in pluribus eodem modo se habeant, sed Graeci sunt 
nati principari aliis, non autem illi qui circa Asiam vel Europam ; 
sequeretur quod Graeci semper vel in majori parte principarentur aliis 
et alii non ipsis, cujus contrarium apparet ex historiis antiquorum: 
Chaldaei enim et Persae qui sunt circa Asiam multo tempore dominati 



Ill] THE PROBLEM OF THE EMPIRE 273 

with the Papacy at its head, was an integral and 
necessary part of the political thought of the medieval 
Aristotelians, the Empire was not. Neither Aquinas 
nor Egidius Romanus were in any way connected with 
or drawn towards the Empire; they were Papalists 
before everything 1 . Hence of the Roman Empire, as 
existing in their own day, they hardly speak ; and 
though the old Empire provided them with many of 
their historical examples, they saw in it only a species 
of the genus Regnum, not, as the Roman lawyers, a 
form of State to itself, and even the only State. 

Yet, if not through Aquinas or Egidius, the Empire 
was to enter the new political theories, which had 

sunt ipsis et vicinis eorum monarchiam tenentes. Similiter Romani 
qui circa Europam sunt plurimo tempore dominati sunt Graecis quam 
econtrario : diuturnior enim f uit monarchia Romanorum quam Grae- 
corum etc." Vide Comment, on Politics, vn. Lectio 5, p. 108. Cf. a 
passage in the De Regimine Principum, in. 10, p. 15, where the author 
gives the duration of the four World-monarchies. The Monarchia of 
the Assyrians lasted 1240 years, that of the Medes and Persians 233 
years, whereas the "monarchia Graecorum in Alexandro incaepit et 
in eodem finitur, quo dicitur in primo Machab. quod regnavit Alexander 
annis 12 et mortuus est. Sed quamvis," he adds, " Graeci non habu- 
erunt universale dominium, viguit tarn en regnum Macedonum usque 
ad mortem Alexandria . annis 485." 

1 Egidius moreover was closely connected with France. In 1295 
he became archbishop of Bourges, and he had been tutor to Philip the 
Fair, for whom he wrote his De Regimine Principum. The struggle 
between Boniface and Philip interrupted for a time his good relations 
with the king, for Egidius was, as we have said, before all things, a 
Papalist. But after Boniface's death they were renewed, as a result, 
it seems, of Egidius having supported the king against the Templars. 
Vide Scholz, Die Publizistik zur Zeit Philipps des Sch'onen und Bonifaz 
VIII. , pp. 37-42 and p. 41 , note 31a. Aquinas also had been intimately 
connected with the university of Paris and received marks of favour 
from S. Lewis. His De Regimine Principum is dedicated to the king 
of Cyprus. 

w. 18 



274 THE PROBLEM OF THE EMPIRE [CH. 

Aristotle's Politics for basis. Now Aristotle's " State " is 
the 7r6\i?, but the 7ro\i? entered medieval thought both 
as the Regnum or Provincia and as the Civitas. If the 
Civitas was the more obvious translation, there was 
none the less little difficulty in bringing the Regnum 
and Civitas under one rubric, as the "State." This was 
certainly the easier to do in that Aristotle himself had 
not distinguished between "kingship in a city-state 
and kingship in a nation 1 ." Then, again, we should 
remember that, while in Italy the " State " might well 
be a city, outside of Italy there were great and powerful 
national kingdoms, with which not a few of these 
Aristotelians were in closer connection than with the 
city-states of Italy. But, though it is true to say that 
in general the Aristotelians translated 7roXt9 by Civitas 
or Regnum almost indifferently 2 , we find already in 
Aquinas the view that the Provincia is a more perfect 
community, because more self-sufficient, than the 
Civitas, as the Civitas itself is more self-sufficient 
than the Vicus 3 . This line of thought is more prominent 

1 Vide Newman, Politics of Aristotle, vol. iv. p. 11. 

2 In his Commentary on the Politics the "State " is almost always, 
if not always, Civitas ; but even in his Be Regimine Principum, where 
it is especially the ' ' regni originem et ea quae ad regis officium per- 
tinent" (vide " Argumentum operis," p. 1), of which he writes, we 
frequently have the Civitas mentioned along with the Regnum or 
Provincia, without any idea of a distinction between them — e.g. i. 14 : 
' ' Institutio civitatis aut regni ex forma institutionis mundi convenienter 
accipitur." So too in Egidius, who, even more distinctly than 
Aquinas, sees in the Regnum a more perfect form of community than 
the Civitas. 

3 Vide Be Regimine Princijnim, i. 1, p. 1 verso: "Cum autem 
homini competat in multitudine vivere, quia sibi non sumcit ad 
necessaria vitae si solitarius maneat, oportet quod tanto sit perfectior 
multitudinis societas, quanto magis per se sufficiens erit ad necessaria 



Ill] THE PEOBLEM OF THE EMPIRE 275 

in Egidius Romanus 1 than in Aquinas; it was only 
a small step further to see the culmination of this 
hierarchy of States in a universal Imperium, the finally 
most self-sufficient and perfect community. 

In the third book of the De Regimine Principum by 
Aquinas, which is regarded as unauthentic, the Empire 
is viewed rather differently. The author distinguishes 
four kinds of " dominion " — the " sacerdotale et regale 
dominium," the "regale dominium" (under which the 
"imperiale dominium" is included), the "politicum 

vitae. Habetur siquidem aliqua vitae sufficientia in una familia 
donius unius, quantum scilicet ad naturales actus nutritionis et prolis 
generandae et aliorum hujusmodi; in uno autem vico, quantum ad ea 
quae ad unum artificium pertinent ; in civitate vero, quae est perfecta 
communitas, quantum ad omnia necessaria vitae ; sed adhuc magis 
in provincia una propter necessitatem compugnationis et mutui auxilii 
contra hostes : unde qui perfectam communitatem regit, id est civitatem 
vel provinciam, autonomasice rex vocatur: qui autem domum regit, 
non rex sed paterfamilias dicitur." 

1 Vide De Regimine Principum, in. Part i. chap. 5, pp. 411-2 : 
"Possumus autem triplici via ostendere, quod praeter communitatem 
civitatis, utile est humanae vitae statuere communitatem regni." In 
the first place "ex parte sufficientiae vitae" — " Quare sicut utile est 
vitae humanae in eadem civitate congregari di versos vicos, ut facilius 
habeantur quae requiruntur ad vitam : sic utile est civitates plures 
congregari sub uno principatu aut sub uno regno, ut facilius et melius 
sibi invicem subveniant quantum ad ea quibus indigemus in vita." 
Secondly, the legislator must aim, not merely at supplying the corporal 
wants of the citizens, but at making them live "secundum legem et 
virtuose." " Si constet de principe quod juste regat et quod non con- 
vertatur in tyrannum, expedit civitatibus propter virtuose vivere et 
propter corruptionem perversorum congregari sub uno regno; quod 
si tamen," he adds however, "princeps tyrannizare vellet, quanto 
minorem haberet potentiam, tanto magis esset expediens civitati." 
Thirdly, the kingdom, which is " quasi quaedam confederatio plurium 
civitatum," is better calculated to sustain hostile attacks — "propter 
faciliorem defensionem et tuitionem utile fuit ex pluribus communi- 
tatibus politicis constituere communitatem unam regni." 

18—2 



276 THE PROBLEM OF THE EMPIRE [OH. 

dominium " and the " oeconomicum dominium 1 ." The 
last is not touched upon subsequently 2 , and, actually, he 
makes a distinction between the "regale dominium" and 
the " imperiale." The "dominium sacerdotale et regale " 
belongs to the Pope, as vicar of Christ, who was both 
Priest and King; while the Imperium itself — the 
universal " monarchia " — the author holds to have de- 
scended from the Assyrians, Medes and Persians, 
Macedonians and Romans, as a fifth " monarchia," to 
Christ. Thus Constantine only surrendered into the 
hands of Christ's vicar what was due to him long 
since. We have met this identical view before in 
Bartolus himself, and we shall later have to consider 
it more closely. For the moment we note that, though 
the "potestas imperii ex judicio papae dependet," 
the " imperiale dominium " is still treated as to some 
extent a class of " dominium " to itself, though in 
general it is grouped under the heading of the " regale 
dominium." So far as the Empire is universal, the 
" imperiale dominium " is said to be superior to the 
"regale dominium," though for another reason, which 
is not mentioned, it is inferior 3 . Later it is placed 
between the " regale dominium " and the " politicum 
dominium 4 ." The distinction between these two rests 
upon Aristotle's 5 distinction between the two forms of 

1 Vide chaps. 10 and ff. 

2 Since of course the "oeconomicum dominium " is not a species of 
political dominion at all. The idea of the ' ' oeconomicum dominium " 
is derived from Aristotle, Politics, in. 14 — ua-rrep yap i] oIkovoixlkt) 
f3acri\eLa ns oiKias iariv, oiirws i] (3acri\eLa TroXews /ecu 'edvovs evos rj 
TrXeiovoov oUovofxia. 

3 Vide De Regimine Principum, in. 12, p. 15. 

4 Ibid. 20, p. 17 verso. 

5 Vide Aristotle, Politics, in. 14 and 15. 



Ill] THE PROBLEM OF THE EMPIRE 277 

kingship, into which he resolves his original five, 
r) AaKGoviKT) (Bao-iXela and rj Tra\x'^acnXeia — the dis- 
tinction between a king Kara vofiov and a king Kara 
rr)v avrov f3ov\7iaiv. The latter alone is truly a king 1 . 
This distinction is naturally commented upon in 
Aquinas' Commentary on the Politics 2 , and passed into 
general currency among the Aristotelian political 
theorists. It represents the distinction between a king, 
who is above the law, and an officer of state, who is the 
creature of law. Thus our present author sees the 
"politicum dominium" in the office of the Roman consuls 
or the " rectores civitatum " of Italy. The " imperiale 
dominium," then, resembles this " politicum dominium " 
in its generally elective character and its occasional 
examples of hereditary succession or usurpation. But 
it resembles the " regale dominium " with regard to 
jurisdiction, coronation and its " arbitraria potestas " 
above the law. 

This may be ingenious, but it is not a very valuable 
theory of the Empire, nor does it really find a place for 
the Empire in the analysis of "dominia," which the 
author undertakes. And yet this continuation of the 

i Ibid. chap. 16. 

2 Vide Comment, on Arist. Politics, in. Lectio 13, p. 47 verso: 
' ' In prima dicit quod fere duae sunt considerandae species monarchiae 
regalis, ad quas aliae aliquo modo reducuntur....Una est Laconica, in 
qua principatur aliquis secundum legem. Alia est regnum. Laconica 
autem differt a regno, quia in Laconica rex principatur secundum 
legem. Item non est dominus omnium. Sed in regno principatur 
secundum virtutem, et est dominus omnium." Cf. on Politics, in. 
Lectio 15, p. 49 and on Politics, i. Lectio 1, p. 1 verso: " Civitas 
autem duplici regimine regitur, scilicet politico et regali. Regale 
quidem est quanclo ille qui civitati praeest habet plenariam potestatem. 
Politicum autem regimen est quando ille qui praeest habet potestatem 
coarctatam secundum aliquas leges civitatis." 



278 THE PROBLEM OF THE EMPIRE [CH. 

unfinished treatise of Aquinas is very interesting and in 
many points original, if it has not the consistency and 
logical precision that distinguishes Aquinas' own work. 
Whether it represents what Aquinas himself would 
have written, had he completed his work, must, of 
course, be doubtful. For us it has a distinct value. 
It shows how far medieval thought, with regard to the 
Empire, was from being hide-bound within one circle of 
ideas, and secondly the very real difficulty which faced 
the men of this period in fitting in the Empire both 
with the new political conceptions and with the facts 
which surrounded them — a powerful Papacy, powerful 
kingdoms, and a weak Empire with a great past and 
still great claims. Medieval political theory could not 
be constant, because there was on the one side, at least 
since the eleventh century, a continued influx of new 
thought ; on the other side, a continual change in the 
external political conditions, which political thought in 
every age must, at any rate in part, reflect. 

We shall illustrate this still better, if we turn to the 
work of a man, who, while deeply imbued with the new 
political philosophy, was, unlike the writers whom we 
have just been considering, what may properly be called 
an Imperialist, though at the same time in no sense anti- 
Papal. The work is the treatise of Engelbert, Abbot of 
Admont 1 , Be Ortu et Fine Romani Imperii 2 , written in 



1 There is some account of his life in Riezler, Die literarische 
Widersache der Papste zur Zeit Ludwig des Baiers, pp. 159 and ff . The 
date of his death is given as 1331 (p. 162). His treatise, De Regimine 
Principum, which according to Riezler (p. 162, note 4) was printed in 
the middle of the eighteenth century, I have not been able to find. 

2 In Goldast, Politica Imperialia, pp. 754-73. 



Ill] THE PROBLEM OF THE EMPIRE 279 

the early years of the fourteenth century, daring the 
reign of the Emperor Henry VII 1 . 

Engelbert, in the preface to his work 2 , tells us that 
he had been sitting talking with some friends, and that 
the conversation had turned upon the condition of the 
Roman Empire. Some said that its end must be near, 
failing as it was both in its rights and power; others 
that, as it began in illicit and unjust conquest of other 
peoples, so it, in its turn, must fall before the en- 
croachments of other kingdoms. He thought over 
these things, and, at the request of some of his friends, 
composed his treatise 3 . 

1 In chap. xvi. p. 765, he mentions " Henricum hujus nominis 
septimum, qui nostro tempore ad imperii clavum sedet." 

2 Vide p. 754 : " Consedentibus et colloquentibus mecum aliquando 
quibusdam familiaribus, viris prudentibus ae maturis, contigit inter 
cetera Romani imperii, sive regni, et status ipsius fieri mentionem: 
quibusdam asserentibus, in tantum jam ipsum imperium sive regnum 
in suis juribus et viribus defecisse, quod verisimile esset in brevi 
ipsum in totum deficere et cessare oportere: aliis dicentibus, quod 
sicut a principio sui ortus Romanum imperium illicite et injuste regna 
mundi et populos diversarum nationum et gentium subegisset armorum 
violentia et bellorum: ita et ipsum Imperium jamdudum et quotidie 
deinceps a diversis regnis et principatibus et nationibus impugnandum 
et imminuendum esse donee in brevi totaliter deleatur. Hac ergo 
hincinde collocutione et collatione habita, ab aliquibus tunc prae- 
sentibus rogatus, et consideratione ipsius rei etiam incitatus, subse- 
quens opusculum de ortu, progressu et fine regnorum, et praecipue 
regni seu imperii Romani, adjunctis rationibus et authoritatibus ac 
exemplis ipsam materiam contingentibus, composui et collegi, credens 
legentibus nonnullum solatium, neque id inutile ex istius materiae 
indagine ac notitia posse pro venire." 

3 It is curious to see that, in the preface to an edition of Engelbert 's 
treatise, printed at Bale in 1553, we have a very similar conversation 
given as the cause of printing the treatise. The writer of the preface 
was Gaspar Bruschius, an interesting sixteenth century figure, a poet 
and antiquary, who recalls to Wolfgang, Abbot of Garsten, "his 
Maecenas," a conversation they had had "de ultimis temporibus ac 



280 THE PROBLEM OF THE EMPIRE [CH. 

Thus the work excellently illustrates the existence 
of this problem of the Empire and its future. Men are 
openly discussing its future existence ; its justness is 
doubted and its future despaired of. And it illustrates 
other sides of our previous inquiries. The treatise, 
though usually known shortly as Be Ortu et Fine 
Romani Imperii, is called by Engelbert himself 1 — 
I)e ortu, progressu et fine regnorum et praecipue 
regni seu imperii Romani. The difference is signi- 
ficant. Engelbert is not starting from the " Romanum 
imperium seu regnum " of the lawyers, as the one 
political State, but from the generic " regnum," of 
which the Roman Empire is a species. Aristotle and 
Augustine are the foundations of his thought ; we shall 
see that he has by no means always harmonised his 
Aristotle and Augustine. For the moment, we have 
only to note that we start from the general history of 
the Aristotelian " regnum 2 ," of which the Roman Empire 

mundi hujus fine et de Romani imperii (quod ante mundi finem collabi 
necesse est) interitu." He is convinced that they are nearing the end, 
and, from a prophecy of Regiomontanus, he concludes that this is to 
be about the year 1588. 

1 Vide above, p. 279, note 2. 

2 Vide e.g. chap. vn. pp. 757-8, where we have the Regnum as the 
culmination of a series of communities, beginning with the Domus. In 
chap. xii. p. 761, where he is discussing the meaning of "magnitude" 
as applied to Regna, he gives, on the authority of Aristotle, five species 
of communities — Domus, Vicus, Civitas, Gens and Regnum — which 
he contrasts with Augustine's three — Domus, Urbs, Orbis. Where in 
Aristotle he finds this series of five communities, it would be very diffi- 
cult to say. Aristotle sees below the ttoXls the oUia and the kco/htj, but 
nothing above it. Probably Engelbert has merely misunderstood Aris- 
totle's views on the tdvos (gens) — they are indeed not altogether easy 
to understand (vide Newman, AristotWs Politics, vol. i. p. 39, and m. 
p. 346, note 2). Engelbert refers to Book iv., but he might well be 
referring to Book vn. (which is iv. ace. to the modern order) where 



Ill] THE PROBLEM OF THE EMPIRE 281 

will afford the chief examples, because it is the special 
subject of the treatise. 

Having proved from Aristotle the justness of 
"dominium" and its conformity to nature 1 , Engelbert 
copies from S. Augustine some words of Justin 2 , to 
prove, aided by other references to Cicero, Macrobius 
and Valerius Maximus, the original innocence and 
justness of all Regna. Such was their origin ; their 
subsequent history is a falling away from this primitive 
excellence. 

Taking Assyria as the earliest "of the very great 

kingdoms of the world," he holds, on the authority of 

Justin, that Ninus was the first to seek unjust dominion 3 . 

Aristotle is discussing the proper size of the ttoXls. Vide chap. 4 — 
6/j.oiojs de Kal ttoXls r) jxev e£ oXiycov Xiav ovk avrdpKrjs (rj 8e ttoXls airrap/ces), 
77 5e €K ttoXXCjv dyav ev rols /xev duayKaioLS avrdpKrjS, ilairep eOvos, dX\ 
ov ttoXls ' TToXirelav yap ov pq.bi.ov vTrapx^LV t'ls ydp o~Tpa.T7]ybs earai rod 
Xiav VTrepfiaXXovros TrXrjdovs, rj t'ls Krjpv^ /xr) "LrevTopeios ; Of course there 
is nothing whatever in Aristotle's words here or elsewhere about the 
ttoXls leading up to the tdvos, as the less to the more self-sufficient, 
nor any idea of the Zdvos as a more "perfect" community than the 
ttoXls. On the contrary Aristotle says that, as the too small 7r6\ts 
will not be independent, and so properly not a 7ro\ts at all, so the too 
large 7ro\ts will indeed be independent as regards the necessaries of 
life, but independent as an ?di>os, not as a iroXis. The Zdvos is ex- 
cluded, from its size, from the possibility of a "constitution," and so 
cannot be a " State. ' ' Still, Engelbert may easily have interpreted this 
into the idea of the Gens as above the Regnum. But whether he did 
so or not, it is important to note that he himself adopts neither of the 
two series of communities, which he gives on the authority of Aristotle 
and Augustine. Throughout his treatise he adopts the quadruple 
series of Domus, Vicus, Civitas, Regnum, with the Vicus sometimes 
omitted, until finally, as we shall see, he caps the series with a 
universal Imperium. For Augustine's series vide De Civ. Dei, xix. 7. 

1 Vide chap. i. p. 754. 

2 He borrows the reference, as most, if not all, his history, from 
Augustine. Vide De Civ. Dei, iv. 6. 

3 Vide chap. iv. p. 756, and Augustine, De Civ. Dei, iv. 6. 



282 THE PROBLEM OF THE EMPIRE [CH. 

As regards Rome, he seems to distinguish three periods 
— that of the kings 1 , that from the expulsion of the 
kings to the end of the Republic 2 , and that of the 
Empire 3 — in each of which deterioration followed a 
good beginning. 

The general aim of all kingdoms is felicity, which 
some men make to consist in virtue, others in pleasure 4 . 
Now, the felicity of the kingdom depends on no other 
causes than the felicity of man. Thus, adopting 
Augustine's well-known comparison between the " duos 
homines, unum mediocrem statu suo et rebus, alium 
vero praedivitem et magnum statu et rebus 5 ," he finds 
the felicity of the kingdom to consist in freedom from 
want, trouble and fear, or affirmatively in sufficiency, 
tranquillity and security 6 , all of which are included in 
the term Peace 7 . He shows that the large kingdom is 
better adapted to securing this felicity than the small, 

1 Vide chap. v. pp. 756-7. 2 Vide chap. vi. p. 757. 

3 Ibid, ad fin. and cf. chap. xx. p. 770. 

4 Vide chap. vn. pp. 757-8. 

5 Vide Augustine, De Civ. Dei, iv. 3. 

6 Vide chap. ix. p. 759. 

7 Vide chap. xiv. p. 763: "Sciendum itaque quod licet superius 
distinguendo felicitatem per partes suas dictum sit, quod felicitas 
regnorum et regum consistat principaliter in tribus, scil. in bonorum 
regni sufficientia sine indigentia, et tranquillitate sine turbatione, 
et in securitate sine timore : omnia tamen ista sub una ratione 
et sub uno nomine pacis includuntur, quae est finis ultimus et 
principalis, ad quern tendunt omnes hominum communitates, parvae 
et magnae, majores et maximae, ut puta, communitas domus, com- 
munitas vici vel villae, communitas et societas gentis et regni, sicut 
dicit Augustinus 19 lib. de Civ. Dei. Pax enim est finis, propter quern 
omnis hominum communitas et societas est constituta : et forma se- 
cundum quam regitur, et ratio sive causa propter quam durat et 
conservatur, et functus in quo complete felicitatur." Vide Aug., De 
Civ. Dei, xix. 11-14, espec. 12. 



Ill] THE PROBLEM OF THE EMPIRE 283 

though, with Augustine, he maintains the necessity 
of justice, if the kingdom is to be something more 
than " a fair thievish purchase 1 ." The large kingdom 
is just " de facilitate," not " de necessitate." The small 
kingdom is not necessarily less just, but justness does not 
constitute the whole of felicity, though essential to its 
complete realization. Justice requires sufficiency and 
security for its execution, and these are more easily 
secured in the larger kingdom; but if they can be 
procured in the small kingdom, it may be preferable 2 . 
Whether the kingdom be just or not depends on two 
conditions 3 : the quality of its acquisition — of which 

1 Vide chap. xm. pp. 761-3. 

2 Vide chap. xm. p. 762, where he has just quoted Augustine's 
words on the "magna latrocinia": "Ex hoc etiam ulterius patet, 
quod si Romanum imperium orbem terrae et ejus dominationem 
obtinuit et tenet sola potentia, sine justitia, tunc jam non erit im- 
perium, sed improperium, et non patrocinium, sed latrocinium orbis. 
Utrum ergo regni magnitudo faciat ad ipsius justitiam, ita ut ideo sit 
et dicatur regnum justum, quia magnum, sicut ille pirata arguebat et 
opponebat Alexandro, et per consequens regnum parvum ideo non 
possit esse justum, quia parvum, ad hoc solvendo dicimus, quod 
nullum regnum ideo est vel erit de necessitate justum, quia magnum, 
sed de facilitate.... Manifestum est igitur ex praedictis omnibus, quod 
justitia per se operatur ad felicitatem regum et regnorum: magni- 
tudo vero potentiae et regni, secundum dilationem et amplitudinem 
ipsius, cooperatur ad felicitatem, non per se, sed per accidens, 
scilicet mediante amore et diligentia justitiae in regnante. Parva 
vero regna, licet possint esse justa, non tamen propter hoc statim 
felicia, quia justitia non est tota felicitas, sed potior pars felicitatis 
regum et regnorum, cum justitia requirat sufficientiam et securitatem 
ad sui executionem. Parva vero regna non possunt esse sibi ex se 
sufficientia nee secura, nisi bonitas vicinorum regnorum praestet eis 
sufficientiam, et aequitas ipsorum concedat ipsis securitatem. Ubi 
vero parva regna ex se possent gaudere sufficientia et securitate, ibi 
esset melius habere regnum parvum et quietum, quam magnum et 
latum, et semper debile et infirmum etc." 

3 Vide chap. x. pp. 759-60. 



284 THE PROBLEM OF THE EMPIRE [CH. 

he distinguishes three kinds, election as in the Empire, 
succession as in other kingdoms, and occupation — and 
the quality of its administration. While he thus 
vindicates the Roman Empire's just acquisition of 
Empire, either through conquest in a war, or testa- 
mentary disposition, or voluntary subjection, and its 
just administration, he argues that, on the other hand, 
neither he, who has acquired his kingdom justly, but 
administers it unjustly, nor he who has acquired it 
unjustly, but rules it justly, can be called a just king 1 . 
The question then remains, whether that peace, which is 
the end of all human communities 2 , be best attained in 
one universal " monarchia " or in single and independent 
kingdoms. His treatment of this question is very de- 
tailed. He gives in the dialectical manner the argu- 
ments for and against, and finally the " solutio " of the 
objections raised against a " world-monarchia." The 
question is so pertinent to our inquiries, and his treat- 
ment of it so significant, that we shall first attempt, 
as briefly as possible, to give an analysis of the 
most important arguments on either side and of the 
" solution." 

In favour of a universal " monarchia " it is argued 3 
that it best fulfils the natural tendency to unity, which 
" art " imitates in single kingdoms and should conse- 
quently follow in " the whole multitude of kingdoms." 
For as the " commune bonum " is preferable to the 
" bonum singulorum " and the " res publica " to the 
"res privata," and as the lesser good of the Domus 
leads up to the greater good of the Civitas, and the 

1 Vide chap. xi. pp. 760-61. 2 Vide chap. xiv. p. 763. 

3 Vide chap. xv. pp. 763-5. 



Ill] THE PROBLEM OF THE EMPIRE 285 

lesser good of the Civitas to the greater good of the 
Regnum, so the lesser good of many kingdoms must 
lead up to the " bonum commune omnium gentium et 
regnorum " in " one natural kingdom and Empire." He 
then adopts from Augustine Cicero's definition of " res- 
publica " as the " res populi," and of the " populus " as 
"multitudo hominum communi consensu divini et 
humani juris sociata in unum," and argues that there 
is but one true "jus divinum," that is "the one true 
cult of the one true God," but one true "jus humanum," 
that is the canons and laws consonant to the Divine 
Law, but one " consensus " in this Divine and human 
Law, that is the Christian faith, and but one people, 
that is the Populus Christianus "fide consentiens in 
illud jus divinum et humanum," and therefore one only 
" respublica " of the whole Christian people. " Ergo de 
necessitate erit et unus solus princeps et rex illius 
reipublicae, statutus et stabilitus ad ipsius fidei et 
populi Christiani dilationem et defensionem." And so, 
he concludes, Augustine holds that there can be no 
true Empire outside the Church, however de facto 
there may have been Emperors who were outside both 
it and Christianity. Further he argues that the exist- 
ence of a universal " monarchia," above all differences of 
race, tongues and laws, is necessary to preserve the 
concord of the world and is in the likeness of God's 
rule over the universe. This " world-monarchia " is not 
a spasmodic or fortuitous occurrence, but the continual 
result of God's providence, working through nature 
and human art and reason; it may be traced from 
the Assyrians to the Babylonians, thence to the Medes 
and Persians, to Alexander and his successors, "ever 



286 THE PROBLEM OF THE EMPIRE [CH. 

fluctuating hither and thither " till it came to Antony 
and Cleopatra, and so, after the battle of Actium, to 
Octavian, the first "monarcha Romanorum." 

We then have the arguments against a "monarchia 1 ." 
It is argued that it is unnecessary to human felicity ; 
for just as many households can exist peacefully and 
separately without forming a Yicus, many Vici without 
forming a Civitas, so there is no necessity for the single 
kingdoms to form one Empire, which is the less quiet 
as it is the greater — "quale nunc est et semper fait 
regnum Romanorum." The Roman Empire was and is 
always troubled by wars and rebellions ; hardly ever 
were the gates of the temple of Janus shut ; the greater 
number of Roman Emperors have died violent deaths ; 
and the Roman Empire has been the cause rather of 
disorder and war than of peace. The Roman Empire 
has therefore been "in vain," because it has not attained 
its end, while we see kingdoms, which are inde- 
pendent of it, living at peace with other kingdoms, 
whether dependent or independent of the Empire. 
The same might hold good of all kingdoms, if there 
were no universal Empire. Besides, there are differ- 
ences of race, tongues, manners and laws, and as the 
true king governs according to the written law, but 
also according to his will or the unwritten law, how can 
there be one king for all diversities of peoples, each 
with their different customs ? Nor is there one only 
Respublica or Populus, for Jews and Gentiles can have 
no place within the Christian Republic or People. 
Further, the Roman Empire has already in certain 
cases withdrawn its boundaries ; while many kingdoms, 
1 Vide chap. xvi. pp. 765-6. 



Ill] THE PROBLEM OF THE EMPIRE 287 

such as France, England, Spain and others, claim to be 
de jure independent of it. If they, why not others ? 

Before coming to the "solutio," Engelbert dis- 
tinguishes * between the perfect felicity of the next life 
and the comparatively imperfect felicity of this life. All 
men aim at felicity, and, in order to obtain it in this 
life, human imperfection needs the subordination of 
the less perfect under the more perfect — the wife and 
family under the rule of the husband, the household 
itself under the Civitas, the Civitas under the Reg- 
num, and finally, therefore, the Regnum under the 
culminating Imperium — "in cujus felicitate, tanquam 
universali et pro tanto una et ultima ac optima, con- 
sistit salus et felicitas omnium." 

Passing now to the " solutio 2 ," he maintains that it 
is better and juster that all kingdoms and kings should 
be subject to one Christian Empire and Emperor, 
since it were monstrous if the Christian Republic were 
to have more than one head. Here on earth an Empire 
is necessary to maintain the peace and concord of 
the world, as also for the defence and propagation 
of Christianity. As to the Roman Empire having been 
"in vain," he answers that, though in the next world 
all " praelatio " and " potestas " will cease, we cannot 
expect perfect security and quiet in this world. The 
felicity of the Regnum here on earth consists, not so 
much in the fact of being in peace, but in continual 
striving for peace and so deserving the eternal peace. 
It must strive for what it can obtain according to 
human imperfection. And though there may be some 

1 Vide chap. xvn. pp. 766-7. 

2 Vide chap. xvm. pp. 767-9. 



288 THE PROBLEM OF THE EMPIRE [CH. 

kingdoms which do not recognize the superiority of the 
Empire, the Empire is still necessary, that the Church 
and Christianity may, under one head, present a united 
front before their enemies and rebels. Nor, because some 
kingdoms, like France, may be specially exempt by 
privilege, does it follow that all should be — "privilegia 
paucorum non facit legem universalem." Otherwise it 
will not be exemption from, but the destruction of, 
the Empire — that falling away of the kingdoms from 
the Empire and of the Churches from the Apostolic 
see, which is to be the forewarning of the advent of 
Antichrist. This it is that they are hastening, who 
" zealously give their mind to the overthrow and dis- 
memberment of the Empire." As for the arguments 
adduced from the differences of race, tongues, manners 
and laws, he answers that what may be true of the king, 
is not true of the Emperor, who is above the king. 
Law is divided into "jus naturale," which is the "jus 
commune omnium gentium" and the "jus positivum," 
which varies according to diversities of race and 
manners. Now all races use the "jus naturale," and 
those parts of Roman Law which are applicable to 
all races and kingdoms. Therefore it is proper and 
necessary that they should all obey the one Roman 
Empire, both for the preservation of the internal concord 
of Christendom and for the protection of the Christian 
kingdoms against the infidels. For the infidels also 
are bound by the "jus gentium " not to harm others and 
to respect the rights of others, and so may legally be 
coerced by the Emperor. Jews and Gentiles do not 
make a part of the Christian Republic or People, but 
they share, as men, in the "jus naturale" and "jus 



in] THE PROBLEM OF THE EMPIRE 289 

gentium," and are subject to the Empire. Finally 
Engelbert disposes of the alleged examples of the 
retreat of the Imperial boundaries. 

Engelbert's treatise shows us how the Empire 
was able to find a place in the new political thought, 
the basis of which was Aristotle's Politics. We saw 
that for the Aristotelian the State, the ttoXls, was the 
Civitas or Regnum, but that before long the Regnum 
came to be considered as a more perfect and self- 
sufficient community than the Civitas. In the same 
way, Engelbert began by taking the Imperium as a 
species of the Regnum; he concluded by placing the 
Imperium above the Regnum, as the finally most per- 
fect and self-sufficient State, completing the Regnum, 
as the Regnum completes the Civitas. That this 
process involved "confused thinking" is indubitable 1 . 

But we may consider this a little more closely. To 
begin with, when Egidius Romanus completes the 
Domus and Civitas with the Regnum, and when Engel- 
bert, going a step further, completes the Domus, Civitas 
and Regnum with the universal Imperium, they do not 
imply that the Civitas in the one case, or the Regnum 
in the other, cannot be " States," but that they are less 
perfect, less self-sufficient communities, fulfilling their 
end better, if completed by a more perfect and self- 
sufficient community. In other words they are better 
fitted to be Communes or Provinces, though they can 
be States. The confusion is obvious. The very fact 
that the series of communities was made to start in 
the Domus, made it desirable that the conception of 
the State— and all it implied according to the new 

1 Cf. Gierke, Political Theories of the Middle Age, pp. 96-7. 

w. 19 



290 THE PROBLEM OF THE EMPIRE [CH. 

political theories — should be reserved for one, that is 
to say the highest, in their series of communities. The 
line between "State" and "not-State" should have been 
drawn either below Regnum, or if they carried the 
series to its conclusion in the Imperium, below Im- 
perium. They did not draw the line, and consequently 
the theory of the State, as distinct from the Province 
or Commune, was still to some considerable extent in 
the making. But we must remember that fact, as 
well as theory, was confused. In the feudal order of 
the thirteenth and fourteenth centuries there was not 
the sharp distinction, which we draw now, between 
State, Province, Commune. Cities of the same magni- 
tude might actually be States in Italy and Communes 
in France. 

If, then, the Empire entered political thought under 
the guidance of Aristotle, it did so as the highest and 
most perfect and self-sufficient community. Engelbert 
was by no means unique in this line of thought. We 
| find it in Papalist writers, who had no prejudice in 
favour of the Empire. Now Engelbert was prejudiced 
in favour of the Empire — and therein lies a point of 
great importance. Engelbert was pleading for the exist- 
ence of an Empire. The result is that, if we look 
a little closer at his treatise, we see that his Imperium 
was, in fact, something besides the highest, completest, 
most self-sufficient state of the Aristotelians. 

In the first place we may notice that very curious 
discussion in which Engelbert argues from the diversity 
of race, laws, tongues and customs for the necessity of 
a supreme Emperor, in order to preserve the concord 
of kingdoms, where they are not separated one from 



Ill] THE PROBLEM OF THE EMPIRE 291 

another by naturally inaccessible boundaries — otherwise, 
" providentia divina super ordinando et conservando 
statu regnorum mundi erit insufficiens et incompleta 1 ." 
Then in the arguments, which he adduces against a 
" monarchia," it is argued that as, according to the Philo- 
sopher, he is not " simpliciter " to be called king, who 
rules merely according to written law, and not at all 
according to his will and reason, there cannot be one 
Emperor or king for all the different races, since there 
cannot be one law, whether written or unwritten, for 
the different races "secundum diversas linguas et 
patrias et patrios mores ac ritus 2 ." Then, finally, in 

1 Vide chap. xv. p. 764: " Sed sicut superius dicebatur regna 
mundi sunt di versa ad invicem, secundum diversitatem unius cuj usque 
patriae et linguae et morum et legum. Haec autem diversitas gentium 
et regnorum, ubi non est limitata et separata magnis montibus et 
fluminibus locisve aliis inviis ac desertis, ut unius gentis ad aliam non 
facilis sit accessus, est causa et occasio adversitatis et discordiae, 
gentis contra gentem, et regni adversus regnum. Ergo de necessitate 
erit aliqua potestas major ac superior, quae habeat authoritatem et 
virtutem concordandi et concordiam ordinandi et conservandi inter 
regna et gentes diversas adinvicem et adversas : aut providentia divina 
super ordinando et conservando statu regnorum mundi erit insufficiens 
et incompleta.... Ergo ex divinae providentiae ordinatione erit de 
necessitate aliqua una potestas et dignitas suprema et universalis 
in mundo, cui de jure subesse debent omnia regna et omnes gentes 
mundi, ad faciendam et conservandam concordiam gentium et regnorum 
per totum mundum." 

* 2 Vide chap. xvi. p. 765: "Praeterea, ut dicit Philosophus quarto 
Politicorum, rex est lex animata etc. Exinde sumitur differentia 
inter regnum regis et regnum politicum; quia politia regit populum 
secundum legem scriptam, rex vero regit regnum secundum utramque 
legem, scilicet scriptam et non scriptam; quia, ut dicit Philosophus 
ibidem, non est simpliciter rex dicendus, qui non regit nisi secundum 
legem scriptam, et nihil secundum voluntatem et rationem propriam. 
Sed lex sive scripta, sive non scripta, non potest esse una diver sis 
gentibus secundum diversas linguas et patrias et patrios mores ac ritus. 

19—2 



292 THE PROBLEM OF THE EMPIRE [CH. 

the "solutio" this is answered as follows : it is true that 
a king must rule according to the particular positive 
laws of each kingdom, which reflect its particular 
characteristics of race, language, customs ; but there is 
also Natural Law — the law common to all nations — - 
and those parts of Roman Law, which can with justice 
and utility be applied to all nations, both of which laws 
all nations are bound to observe "intra se," as well as 
in their dealings with their neighbours. This applies 
equally to Christian and Pagan nations, for Pagans, 
"in quantum homines," are subject to the dictates of 
the "jus gentium," i.e., not to harm others and to 
respect their rights, and can therefore be coerced " per 
imperium 1 ." 

Ergo nee urms rex vel imperator potest esse diversis gentibus secundum 
linguas vel patrios mores ac ritus patrios adinvicem diversificatos." 

1 Vide chap. xvm. p. 768: " Ad quartum quod objiciebatur, quod 
non est possibile nee conveniens gentibus a se diversis, secundum 
diversas linguas ac patrias et mores et ritus patrios, esse unam legem ; 
ergo nee unum regem; et per consequens ergo non est conveniens 
neque utile neque justum omnibus gentibus praeesse unum imperatorem 
etc. — Responcleo, quod alia ratio attenditur circa hoc in rege et alia in 
imperatore, qui est super reges ; quia sicut lex (generaliter sumendo 
nomen legis) distinguitur in jus naturale, quod est jus commune 
omnium gentium, et in jus positivum, quod variatur secundum diversi- 
tatem gentium, juxta diversas patrias et mores ac ritus patrios; ita 
singulae gentes singulos habent reges unamquamque gentem, secun- 
dum suas leges proprias convenientes suae patriae et moribus et 
ritibus ipsius, regentes et gubernantes. Omnia vero regna simul 
secundum jus naturale commune omnibus gentibus et regnis, vel 
secundum ea quae ex ipsis legibus Romanis possunt omnibus gentibus 
et regnis juste et utiliter con venire, et quae omnes gentes et regna 
omnia tenentur intra se et ad vicinos et ad extraneos observare, non 
solum possibile, sed etiam necessarium et utile est, uni Romano 
imperio obedire, vel ad pacem et quietem uniuscuj usque regni et gentis 
intra se simul et extraneos observandum, ut in regnis Christianis, vel 
saltern ad ipsa regna Christiana ab ipsis non invaclenda nee pertur- 



Ill] THE PROBLEM OF THE EMPIRE 293 

We have noticed above the difference between the 
" regnum regis " and the " regnum politicum," as it 
appears in Aquinas and his continuator, and have 
traced it back to Aristotle himself. The problem of the 
relation of the ruler to law, as presented by Aristotle, 
is to be compared with the problem, which had occupied 
the attention of the lawyers for many years before 
Aquinas, whether the Princeps, who is "solutus legi- 
bus," is free to act merely at caprice. This had in 
general been answered negatively, for not only is the 
Princeps bound by the higher Laws of God, Nature and 
Nations, but also, though he is not bound by, it is still 
right and proper that he should rule according to, his 
own laws. In the arguments, which Engelbert adduces 
against a universal " monarchia," he expresses the differ- 
ence between the "regnum regis" and the "regnum 
politicum " by saying that the true king rules, not only 
according to the unwritten law, but also according to 
his will and reason. By will and reason Engelbert does 
not mean mere caprice 1 , but an unwritten law consonant 

banda, ut in regnis infidelium et paganorum, quae (quantum ad hoc) 
Romano imperio subesse tenentur; quia non solum est j us Christiano- 
rum, sed etiam jus gentium et omnium hominum (in quantum homines) 
jus suum unicuique tribuere et servare et alteram injuste non laedere ; 
ad quod Christianis regnis observandum, possunt et debent ipsi infideles 
et pagani de jure per imperium coherceri." 

1 This is clear if we turn to Aquinas, Comment, on Politics, iv. 
Lectio 4, p. 57, whence the expression "voluntas et ratio" seems 
taken. Aquinas is commenting on the passage in Aristotle's Politics iv. 
(ace. to the modern order vi.) chap, iv., where Aristotle says that 
there can be no irokLTeia, where the Law is not supreme. "Sed ali- 
quis argueret contra illud quod dicit, quod ubi leges non praevalent 
non est respublica, quia monarchia regalis politia est, tamen non est 
principatus secundum legem, sed secundum voluntatem et rationem 
principantis. Ad hoc posset aliquis dicere breviter, quod quaedam 



294 THE PROBLEM OF THE EMPIRE [CH. 

to the customs of each particular kingdom ; otherwise 
his argument that there cannot be a true king over all 
kingdoms with their discordant customs would not 
apply. And, thus, in the " solutio " of these arguments 
against a universal "monarchia," this particular argu- 
ment is so stated as merely to express the view that there 
cannot be one law for all the diverse kingdoms, w T ith 
their diverse tongues and customs, and therefore no one 
Emperor above these kingdoms. To this he answers, 
as we have seen, that " alia ratio attenditur circa hoc in 
rege et alia in imperatore, qui est super reges." He 
distinguishes between the "jus naturale" — " quod est jus 
commune omnium gentium " — and the "jus positivum," 
which varies from race to race, and compares this dis- 
tinction to that between a single race, governed by 
a king "secundum leges proprias convenientes suae 
patriae et moribus et ritibus ipsius," and all nations 
which together observe the "jus naturale" and "ea quae 
ex ipsis legibus Romanis possunt omnibus gentibus et 
regnis juste et utiliter convenire." And from this he 
argues that the obedience of all nations to the Roman 
Empire is not only possible, but necessary, both for the 

est politia monarchicha in qua unus dominatur. Alia est politia 
poliarchicha in qua plures principantur. In politia poliarchicha non 
corrupta principatus est secundum leges et de tali loquitur Aristoteles, 
in alia non. Aliter dicendum est et melius quod in omni politia 
principatur aliquis secundum aliquam regulam, quam dicimus legem. 
Sed in quibusdam ilia regula est interior existens in voluntate et 
ratione, in quibusdam est extra in scripto. In monarchia regali, 
monarcha habet istam regulam quae est in voluntate et ratione ejus, 
in politia poliarchicha est extra in scripto. Quod ergo dicebatur, quod 
ubi est politia ibi est principatus secundum legem, verum est, vel in- 
trinsecam, vel scriptam. Hie autem intelligit de scripta ; et ideo non 
multum differt a prima, sed earn declarat." 



Ill] THE PROBLEM OF THE EMPIRE 295 

internal and external peace of Christian nations and 
for their defence against the infidels, who "in quantum 
homines" are bound by the "jus gentium," and so sub- 
ject to the Empire. 

Now leaving aside the case of these infidels 1 , one 
cannot fail to be struck by this argument. It amounts 
to this : as every particular kingdom has its particular 
laws, over which stands a particular king, so all king- 
doms, having common laws, form an Empire, over which 
stands a universal Emperor. And note what these 
common laws are — the Law of Nature and those parts 
of Roman Law which can be applied to all races. That 
is to say, the Emperor is the head of a universal State 
with universal laws, above both particular kings and 
particular laws. The universal Empire is the Roman 
Empire ; the universal law is, in part, also Roman. 

This is a very different conception of the Empire 
from that which we have just been considering — the 
Empire as the highest, completest and most self-suffi- 
cient community. This is not the Aristotelian's Empire. 
If it is not the civilian's Empire, it is very near it. 
The Aristotelian's Empire is the highest and most 
perfect community, in which less perfect communities 
find their completion. In the passages before us the 
conception is quite different. The universal Empire 
and Emperor, with their universal laws, stand in an 
international position above the particular kingdoms 
and kings, with their particular laws. The difference 
between the Empire and the kingdoms is not merely 
one of degree of perfection, but rather a difference of 
kind. " Alia ratio attenditur circa hoc in rege et alia in 
1 Vide above, pp. 105-7. 



296 THE PROBLEM OF THE EMPIRE [CH. 

imperatore, qui est super reges." The kingdom is a 
particular national unit with its own language, race, 
customs. The raison d'etre of the Empire is the very 
fact that there are many such particular national units, 
and that consequently there must be one international 
power above them. The kingdoms represent the 
diversity of race from race, the diversity of their 
customs as expressed in their diverse laws. The 
Empire represents the unity of Christendom and even 
of mankind, as expressed in a common law, which 
binds them as men, not as members of this or that 
community. 

But the changes in Engelbert's conception of the 
Empire do not stop here. The Empire was viewed 
originally as a species of the Aristotelian Regnum, and 
then as something above the Regnum, because more 
perfect and self-sufficient. We have then seen it 
approach very near to the lawyer's universal State. 
But, in his arguments on the question of a universal 
" monarchia," we have the first sign of change of view, 
which is obvious in the last chapters of the work. The 
Imperium as a " State " vanishes, and we return to the 
old conception of the Empire as the secular govern- 
ment of the Church. It is here that his interpretation 
of S. Augustine leads him to conclusions, which do not 
harmonise with the Aristotelian basis of his thought. 
From Aristotle he gets the conception of the Empire 
as the most perfect and self-sufficient State ; from 
Augustine he interprets it as a "power" within the 
Church. 

The first point to be noticed is that, in his argu- 
ments in favour of the Roman " monarchia," Engelbert 



Ill] THE PROBLEM OF THE EMPIRE 297 

adopts 1 Cicero's definitions of "respublica "and "populus," 
which Augustine expressly held inapplicable to Rome. 
Augustine, as we saw, held them inapplicable, because 
Cicero's definition implied that the Respublica cannot 
exist without justice, and Augustine refuses to see the 
possibility of justice in a Pagan Rome — " where man 
does not serve God, what justice can be thought to 
be in him 2 ? " Now Pagan Rome is a thing of many 
centuries past : and for Engelbert the very fact that 
there is a "consensus" in one "jus divinum " — that is 
to say, " the one true cult of the one true God " — and 
in one "jus humanum " — that is to say, the Canons and 
Laws consonant to the "jus divinum" — is a proof that 
there is but one Christian Republic and People. There- 
fore there is one only king or prince of that Republic. 

1 Vide chap. xv. p. 764. 

2 "Ita scribit August. 19 lib. de Civ. Dei ex verbis Ciceronis in lib. 
de Republica, quod respublica est res populi, populus autem est multi- 
tudo hominum comrnuni consensu divini et humani juris sociata in 
unum etc. Ergo ubi est unum jus divinum et humanum, et unus et 
concors consensus populi in illud unum jus divinum et humanum, ibi 
erit unus populus et una respublica. Ubi autem est unus populus et 
una respublica, ibi de necessitate erit et unus rex et unum regnum. 
Sed est unum solum in toto mundo verum jus divinum, videlicet unus 
cultus verus veri Dei; et solum unum verum jus humanum, scilicet 
canones et leges consonae juri divino, quia jus humanum sumit 
authoritatem et principium a jure divino, et non e contrario. Et est 
unus solus consensus populi in illud jus divinum et humanum, 
scilicet fides Christiana ; et unus solus populus, scilicet Christianus 
populus, fide consentiens in illud jus divinum ; et per consequens una 
sola respublica totius populi Christiani. Ergo de necessitate et unus 
solus princeps et rex illius reipublicae, statutus et stabilitus ad ipsius 
fidei et populi Christiani dilationem et defensionem. Ex qua ratione 
concludit etiam Augustinus 19 lib. de Civ. Dei quod extra ecclesiam 
nunquam fuit, nee potuit, nee poterit esse verum imperium, etsi 
fuerunt imperatores qualitercumque et secundum quid, non simpliciter, 
qui fuerunt extra fidem Christianam et ecclesiam." 



298 THE PROBLEM OF THE EMPIRE [CH. 

And so he can maintain Augustine to have held that 
there can be no true Empire outside the Church, 
however de facto there may have been Emperors out- 
side both Church and Christianity. Now it is scarcely 
necessary to say that, neither in Book xix., nor any- 
where else in the Civitas Lei, does Augustine hold this 
view in so many words. He does deny that there can 
be a State, in the proper sense of the word, where there 
is not the worship of the true God : in other words 
he maintains that the true State is a Christian State. 
On the other hand, he expressly finds a definition of 
" Respublica," which can be applicable to Pagan Rome, 
and of which Engelbert takes no notice ; and while 
he extols the felicity of a Christian Emperor, he ex- 
pressly holds that God gave the Empire to the Pagan 
Julian, as He did to the Christian Constantine. How 
it became possible to interpret Augustine, as we see 
him here interpreted by Engelbert, we have already 
attempted briefly to indicate 1 . For our present purpose 
it is sufficient to see that Engelbert could read this mean- 
ing into Augustine : and that the result of so doing 
was to bring back the old conception of the Empire as 
within the Church, as the government and leader- 
ship of the Christian Republic and People. Engelbert 
began, like any other Aristotelian, from the Regnum, 
as the State. He proceeded, like many other Aristo- 
telians, to advance the Imperium above the Regnum, 
as a yet more perfect and self-sufficient State. He 
did not, on the other hand, as Aquinas, argue that 
finally the Papacy must be above all States, because 
it directs man to his ultimate end, for the attainment 
1 Vide above, pp. 64-7. 



Ill] THE PROBLEM OF THE EMPIRE 299 

of which the State merely supplies the means. He 
reverted rather to the older political thought, in which 
the State had not yet come to exist, in which the bond 
of human society was the Church or Christian Republic, 
of which the secular power was one — as he says here the 
only 1 — government. 

Between the two views there is a vast difference, 
though both were opposed to the development of a 
theory of the State, in its modern sense. Aquinas 
did not destroy the State, but placed over it a uni- 
versal Papacy, which itself came more and more to 
be invested with the political attributes of a State. 
The result was to retard the development of the State 
as an independent and secular " societas perfecta." The 
State was there, but it could not by itself lead the 
men who composed it to their ultimate end : that task 
could be fulfilled only by the universal Papacy, on which 
therefore every State must be dependent. Engelbert, 
on the other hand, reverted, as we have said, to a mode 
of thought in which the very conception of the secular 
State was wanting : so that the treatise which began 
with seeking the origin of the Roman Empire in 
common with all other Regna, saw in its end the 
destruction of the secular government of the Church — 
and, with that, of the Church itself. 

This becomes quite obvious in the last few chapters, 
in which he treats of the coming of Antichrist. In 
Chapter xvin., which is the "solutio" of the objections 
urged against the Roman '"' monarchia," he argues for the 
necessity of an Empire to insure the unity, defence and 
diffusion of the Church. Certain kingdoms may be 
1 But later, we shall see, he recognises the two governing powers. 



300 THE PROBLEM OF THE EMPIRE [CH. 

free by privilege, but an Empire is still necessary ; for 
its destruction will be the herald of the coming of 
Antichrist. The first sign of his coming will be the 
" discessio " of the kingdoms from the Roman Empire, 
to be followed by the " discessio " of the Churches from 
their obedience to the Apostolic see, and lastly of the 
faithful from the faith. The Church will then be a 
headless and lifeless body, its members uninfluenced 
by its twin temporal and spiritual heads 1 . This is 
repeated in the last few chapters. The Empire and 
Papacy are the twin heads — the temporal and spiritual — 
of the Church, of which the faithful are the members ; 
Antichrist can only come when the Church is headless 
and its members consequently "without motion and 

1 Vide p. 768: "Quod subjectio omnium regnorum respectu im- 
perii non solum ideo est utilis et necessaria ac justa, ut regna per 
ipsum imperium adinvicem pacificentur et concordentur. . .sed praecipue 
ideo justa vel utilis et necessaria est subjectio regnorum ad imperium, ut 
contra eos qui sunt extra ecclesiam et extra fidem et contra ecclesiam 
et contra fidem ipsa ecclesia atque fides ad omnibus suis membris, sub 
uno suo proprio capite concordantibus et unitis, defendatur et ad dilatan- 
dum locum sui tabernaculi fines suos faciat longiores. In quo casu et 
causa nullum regnum Christianum a subjectione et obedientia imperii 
credimus esse liberum vel exemptum. . . . Sed privilegia paucorum non 
faciunt legem communem, nee si omnia regna essent libera et exempta 
ab imperio, ista esset vel dici posset exemptio ab imperio, sed potius 
peremptio et totalis destructio imperii, qualis futurus est secundum 
prophetiam Pauli Apostoli, quando, appropinquante tempore adventus 
Antichristi, veniet discessio primum regnorum omnium ab imperio, 
deinde ecclesiarum ab obedientia sedis Apostolicae, et ultimo fidelium 
a fide, sicuti postmodum dicetur. Tunc enim ecclesia sic acephalata 
et vacante, et membris influentiam suorum capitum in temporalibus 
et spiritualibus non capientibus et per consequens motu ac sensu 
gratiae privatis, locum et facultatem habebit deceptio et dominatio 
Antichristi: unde illi, qui studium et ingenium suum adhibent ad 
dejectionem et detruncationem imperii, videntur directe festinare ad 
hoc, ut locus et facultas praeparetur tyrannidi Antichristi." 



Ill] THE PROBLEM OF THE EMPIRE 301 

sense 1 ." The "discessio " will begin with that of the king- 
doms from the Roman Empire, after which the Empire 
" deflciet et cessabit in totum." The " discessio " of the 
Churches will follow, which the spiritual sword, deprived 
now of the help of the temporal, will not be able to 
restrain. Lastly will come the " discessio " of the faith- 
ful, when there is no longer either secular or spiritual 
power left to preserve the unity of the Christian faith 2 . 
The blame rests with the " praelati," both spiritual and 
secular, and with the " subditi," but most of all with 
the Roman Emperors themselves, some of whom have 
rebelled against the Church itself, outside of which, he 
again repeats, there is not, nor can be, an Empire, while 
others, through pride, avarice, malice or slackness in the 
government of the Respublica, have themselves helped 
to bring about the dismemberment of the Empire. 
" Therefore the dissolution and destruction of the Roman 
kingdom or Empire is to be through the falling away of 
those kingdoms from the Empire, which were formerly 
coerced and subdued into the one body of this very 
Empire 3 ." 

In this account of its dissolution the Empire 
seems to assume the character both of a world-wide 

1 Vide chap. xxi. p. 771 : " ...Quia stante adhuc capite ecclesiae in 
spiritualibus scilicet apostolica sede, et capite in temporalibus scilicet 
imperio Romano, et stantibus adhuc fidelibus in fide, locum et com- 
moditatem non habebit deceptio et dominatio Antichristi, capitibus 
praedictis et membris ipsorum ei resistentibus. Cum vero corpus 
ecclesiae factum fuerit acephalum et per consequens membra singula 
sine motu et sensu, quantum ad veritatem et unitatem ac firmitatem 
fidei, tunc locum et effectum habebit adventus Antichristi et malitia 
ipsius etc." 

2 Vide chap. xxn. p. 771. 

3 Vide chaps, xxn. and xxm. 



302 THE PROBLEM OF THE EMPIRE [CH. 

territory and of the temporal head of the universal 
Church. Its end is to be the " discessio " of the many 
provinces, which it had formerly conquered and reduced 
into the "unum corpus Romanae reipublicae 1 ." Simi- 
larly, when Engelbert talks of the Emperors as rebels 
against the Church, he means, it is perhaps needless to 
point out, rather the clergy and Pope, than the " com- 
munio fidelium," of which the Empire has been called 
the "caput in temporalibus." And this only makes 
more evident what we have wished to demonstrate 
hy our analysis of Engelbert's treatise. The treatise 
is a plea for the Empire. But, as we analyse the 
treatise in detail, we see that Engelbert's theory of the 
Empire contains elements drawn from different sources, 
which are not really harmonised. His Empire is much 
besides the most perfect and self-sufficing community 
of the Aristotelian material, which is the foundation 
of his political theories. It is this characteristic which 
makes it so interesting and important a work. The 
treatise shows us how the Empire entered the political 
theories of the Aristotelians ; it also shows us that 
conceptions of the Empire, based on older political 
theories, still live on side by side with the new. 

1 Vide p. 772: " ...Et ideo a diversis nationibus et gentibus, ut 
puta a Sarracenis, a Longobardis, a Gothis, a Vandalis, ab Hunnis, a 
Sola vis et Graecis, et demum a Francis et Hispanis, provinciae imperii 
sen regni Romani ab imperio sunt distractae, et in principatus et 
regna per se reversae et redactae, sicut prius ab ipsis Romanis iidem 
illi principatus et ea ipsa regna debellata et subacta, in Romanas pro- 
vincias fuerant redacta....Sed per coactionem et bellicam subjectionem 
regna mundi et principatus et provinciae olim sunt subactae, et com- 
pactae quasi in unum corpus Romanae reipublicae.... Ergo dissolutio 
et destructio regni sive imperii Romani futura est per recessum et 
discessionem illorum regnorum ab imperio, quae prius in unum corpus 
ipsius imperii taliter coacta fuerant et subacta." 



Ill] THE PROBLEM OF THE EMPIRE 303 

The resemblance between this treatise and Dante's 
De Monarchia has often been noted. We have ex- 
amined Engelbert's treatise in order to see how the 
new Aristotelian political theories might be made to 
support a plea for the Empire ; we might with equal 
propriety have chosen the De Monarchia. But there 
is at least one very important point of difference be- 
tween Engelbert's position and Dante's. Engelbert's 
treatise is the result of a quiet, cloistral conversation ; 
his nationality never obtrudes into his work. Dante's 
is the work of a layman and an exile, who had lived an 
active, political life; Dante is always a fervid Italian 
patriot. 

Italian patriotism naturally looked back to the past 
greatness of Italy, when Rome was in truth the centre 
and mistress of the world. The growth of the north- 
Italian communes meant the triumph of the Roman 
element in their population ; Roman Law triumphed 
over Lombard Law; an Italian language, the direct 
offspring of vulgar Latin, grew up and acquired a 
stable form in a literature ; the Italians became a nation, 
however disunited — and that nation was a Latin nation. 
While the lawyers were busy discussing the "LexRegia," 
the Roman populace asserted its claim to be the source 
of the Imperium. The other Italian cities looked to Rome 
as to their mother-city 1 ; it was the proud boast of great 
Guelph cities like Florence or Perugia that they were 
" daughters of Rome 2 ." The Guelph opposition to the 

1 Vide Pomtow, TJeber dem Einfluss der altromischen Vorstellungen 
etc., pp. 4-15; D'Ancona, II Concetto della unita politica nei poeti 
italiani, p. 7. 

2 Vide Graf, Roma nella Memoria e nelle Immaginazioni del Medio 
Evo, vol. i. p. 21. 



304 THE PROBLEM OF THE EMPIRE [CH. 

Emperors might even appear in the light of a struggle 
by Italian nationalism against German invasion and 
conquest. 

Dante was a Guelph by birth, but himself he was 
above party. In his Divine Comedy he metes out 
reward and punishment to Guelph and Ghibelline alike. 
He is equally severe on those who " oppose " and those 
who "appropriate" the Empire — the Guelphs with their 
clerical and French allies and the Ghibellines, who " ply 
their arts " under cover of the " sacred standard 1 ." 
Dante's political thought contains a fusion of Guelph 
nationalism and Ghibelline Imperialism, both purged 
of their party signification. 

We can do but scant justice to Dante's political 
thought in these pages. We are here concerned with 
but one side of it — and one which, while it receives 
illustration from every part of his work, we are some- 
times apt to overlook. Dante's insistent claim for the 
independence of the Empire from the Papacy is apt to 
engross our attention. But we ought to remember that 
his insistence on the Roman character of this Empire 
occupies fully as much of his thought 2 . The Empire 
belongs to the Romans historically and by divine ordi- 
nation. They conquered the world justly and therefore 
possess it on a just title; the Roman Empire was the 
divinely prepared organ of that peace, which is the aim 
of all human societies, and which was realised in its 

1 Vide Paradiso, vi. 31-3 and 100-11. 

' 2 It is illustrated by the whole of Book n. of the Be Monarcliia, by 
Convivio iv. 4-5, Epist. v., vi. and vn. (though, of course, the authen- 
ticity of these letters is by no means certain) , and by numerous passages 
throughout the Divine Comedy, of which Justinian's speech (Para- 
diso, vi.) may be given as the most striking example. 



Ill] THE PROBLEM OF THE EMPIRE 305 

perfection only once, when, under Augustus, the world 
was divinely prepared to receive Christianity. 

The definition of peace as the "ultimate and 
principal end, to which all human societies tend," 
we have seen used by Engelbert as a chief argu- 
ment for the existence of a universal Empire. This is 
the Imperialist standpoint — 

" Lo 'mperador con pace 
Tutto '1 mondo mantiene 1 ." 

Dante, we have said, was not only an Imperialist ; he 
was also an Italian patriot. Like Petrarch 2 , he went 
crying out for peace, and, as in the case of Petrarch, 
it was more especially peace for his own Italy, disunited 
and distracted by faction, the prey of tyrants, and with 
no pilot to guide it amid all these troubles 3 . For to 
Dante the Emperor was not only the universal pilot 4 ; 
he was, in a special sense, the pilot of Italy 5 . 

The pilot was found for a wmile in Henry of Luxem- 
bourg, the man who realised Dante's ideal of an Emperor, 
who, unlike the false Albert, came, prematurely, but 

1 The lines occur in what is perhaps the best known of all the 
earliest Italian poems — the lament of the Crusader's mistress by 
Rinaldo d'Aquino. I quote it from the poem as printed by Butler, 
Forerunners of Dante, p. 21. 

2 " lo vo gridando pace, pace, pace." (Vide the last line of the 
famous Canzone beginning "Italia mia.") 

3 Vide Purgatorio, vi. 76-126. 

4 Vide Convivio, rv. 4, p. 299: "...Conviene essere uno quasi 
nocchiere, che considerando le diverse condizioni del mondo, e li 
diversi e necessari uffici ordinando, abbia del tutto universale e irr- 
epugnabile ufficio di comandare." 

5 "Ahi serva Italia, di dolore ostello, 

Nave senza nocchiere in gran tempesta. . . . " 

(Vide Pnrg. vi. 76-7.) 

w. 20 



306 THE PROBLEM OF THE EMPIRE [CH. 

as in duty bound, to "straighten Italy 1 ." Henry's 
untimely death shattered Dante's hopes, but not his 
ideals. The De Monarchia is not, as it has sometimes 
been called, the " swan-song " of the Empire ; if the 
Empire had a " swan-song," Nicolas of Cusa, not Dante, 
sang it. Indeed, it is as likely as not that the De 
Monarchia was written after Henry's death, even in 
the last years of Dante's life 2 . His book is not a 
lament ; it is, so far as it here concerns us, an answer 
to the problem of the Empire and its future. It gives 
us the Italian answer, just as "Jordan of Osnaburg" 
and the author of the Notitia gave us the German. 
The Germans claimed the Empire as German historically 
and by divine ordination ; Dante on the same grounds 
claimed it as Italian. The Germans turned to Charle- 
magne and the Franks, Dante to Roman history and the 
great Roman Emperors and heroes. To the Germans the 
Rhineland was the seat of the Empire, while Italy was but 
a conquered province ; to Dante Italy was the Empire's 
garden 3 and Rome itself its proper seat 4 . To Dante 
Henry VII was no German, but Roman Emperor, 
"Caesaris et Augusti successor 5 ," Italy's spouse and 

1 Vide Paradiso, xvn. 80-90, xxx. 133-8. 

2 Vide Kraus, Dante, Sein Leben und sein Werh, pp. 678-87. He 
concludes : " Fasst man alle diese Gesichtspunkte zusammen, so wird 
man sich die Einsicht kaum verschliessen konnen, dass die Monarchia 
nach 1317, vermuthlich in derselben Zeit, wie die letzten Gesange des 
Purgatorio entstanden, und zwar in Ravenna geschrieben ist." 

3 Vide Purgatorio, vi. 105. 

4 Vide De Monarchia, in. 10 ad init. 

5 Vide Epist. vn. 1 (to Henry VII), p. 409: " Quumque tu, Caesaris et 
Augusti successor, Apennini juga transiliens, veneranda signa Tarpeia 
retulisti, protinus longa substiterunt suspiria, lacrymarumque diluvia 
desierunt; et, ceu Titan peroptatus exoriens, nova spes Latio saeculi 
melioris effulsit." 



Ill] THE PROBLEM OF THE EMPIRE 307 

Italy's glory 1 . He was the direct successor of Frede- 
rick II 2 : Rudolf, Albert, and Adolf, on the contrary, 
were Germans, who basely refused to do their duty, 
who paid no heed to the cry of " their Rome," who re- 
fused to be Roman Emperors 3 . To Dante the election 
of Rudolf was no presage of better times, as it was to 
" Jordan " ; in his eyes the Interregnum lasted from 
Frederick II's death to Henry YII's coronation. For 
him a German Emperor was an impossibility ; an Em- 
peror was Roman, his proper place was in Italy. 

Dante does not stand alone 4 , however much his 
towering genius seems to isolate him among his con- 
temporaries. A detailed inquiry into the political 
thought of the early Italian poets would be of great 
interest and well repay the study 5 . The poetry of the 
thirteenth and fourteenth centuries is full of politics, 
because the poets were for the most part politicians. 
Italian poetry began in the Sicilian court of the last 
great Emperor; he and his ministers and courtiers 

1 Vide Epist. v. 2, p. 406: " Laetare jam, nunc miseranda Italia 
etiarn Saracenis, quae statim invidiosa per orbem videberis; quia 
sponsus tuus, mundi solatium et gloria plebis tuae, clementissimus 
Henricus, Divus et Augustus et Caesar, ad nuptias properat." 

2 Vide Convivio, iv. 3, p. 298: "...Federigo di Soavo, ultimo Im- 
peradore de' Romani (ultimo dico per rispetto al tempo presente, non 
ostante cbe Ridolfo e Adolfo e Alberto poi eletti sieno appresso la sua 
morte e de' suoi discendenti)...." Dino Compagni, or whoever is the 
author of the "Chronicle," in the same way regards Henry VII as the 
direct successor of the Emperor Frederick II. 

3 Vide Purgatorio, vi. 97-126, vn. 91-6. 

4 Vide D'Ancona, "La Politica nella Poesia del Secolo XIII e XIV " 
(in Nuova Antologia, January 1867), pp. 30-52. 

5 The three articles by D'Ancona, to which I have referred in the 
note above (Nuova Antologia, Jan., Sept., Dec. 1867), are the only 
study of any length on this subject of which I know. So far as they 
go, they are very noteworthy, but they are by no means complete. 

20—2 



308 THE PROBLEM OF THE EMPIRE [CH. 

were all poets. Thence it passed northwards; the 
poets were men closely concerned with the active 
political life of the Italian cities, men who knew at 
first hand the meaning of exile, tyranny, faction and the 
other phenomena, which were, in great part, directly due 
to the practical non-existence of the Imperial authority 
in Italy. But here such inquiry is not to be attempted. 
We must pass on briefly to consider Dante's greatest 
successor, Petrarch ; but, in passing, we may note that 
Cino da Pistoia, the master of Bartolus, whom, as 
a lawyer, we have more than once had occasion to men- 
tion, occupies a very similar position to that of his friend, 
Dante. He too was an exile, and he too set his public 
and private hopes on the success of Henry VII l ; he 
too, when those hopes were destroyed, saw the dead 

Emperor 

" co' gli altri nel beato regno 2 ." 

1 Vide Canzone xv. (in Rime di Messer Cino da Pistoia, ed. Bindi 
and Fanfani), pp. 186-7: 

"In uno e morto '1 Senno, e la Prudenza, 
G-iustizia tutta, e Temperanza intera. 
Ma non e morto: ahi lasso! ch' ho io detto? 
La fama sua al mondo e viva e vera. 

Ma quai son morti, e quai vivono ancona 
Di quei, che avean lor fede in lui fermata 
Con ogn' amor, si come in cosa degna, 
E malvagia fortuna in subit' ora 
Ogn' allegrezza nel cor ci ha tagliata." 
There is another Canzone by Cino on the death of Henry VII 
(Canzone xix. pp. 270-4), though this latter one is sometimes as- 
cribed to Dante. 

2 Canzone xv. p. 188 : 

"Arrigo e Imperador, che del profondo 
E vile esser quaggiu, su nel giocondo 
L' ha Dio chiamato, perche '1 vide degno 
D' esser co' gli altri nel beato regno." 



Ill] THE PROBLEM OF THE EMPIRE 309 

There is no more interesting commentary on Dante's 
political thought than Petrarch's letters to Charles IV, 
the grandson of Henry VII. Charles, we know, had 
resolved definitely to renounce his family policy, to 
leave Italy and to build up a strong position in 
Germany, with his Bohemian kingdom as its founda- 
tion. No doubt he was right ; he had learnt his 
lesson by experience during the two years which he 
had passed in Italy, when young, as viceroy to his 
father, John of Bohemia. But it is easy to under- 
stand the intense disappointment of all but the Guelphs, 
when they saw the grandson of Henry VII come to 
Italy to be crowned, and hasten back after a single 
day in Rome — all at the command of a French Pope 
in Avignon. 

The burden of Petrarch's correspondence with 
Charles IV is — "remember your father and grandfather." 
"0 si in ipsis Alpium jugis," he writes 1 , dissuading 
Charles from leaving Italy after his coronation, "avus 
tibi nunc paterque fiant obvii ! quid dicturos putas ? 
crede illos audias vel absentes. — 'Profecisti eximie, 
ingens Caesar, hoc tuo tot per annos dilato in Italiam 
adventu et festinato abitu. Refers demum istud fer- 
reum, illud aureum diadema, simul ac sterile nomen 
imperii. Imperator Romanorum vocitaberis Bohemiae 
rex solius ; qui utinam nusquam esses, ut vel eis altius 
coacta virtus assurgeret, famesque domestica negiec- 
tum aviti cultum patrimonii suaderet.' " Otherwise 
what need has he of being Roman Emperor 2 ? — " Nihil 

1 Vide Epist. Famil. xix. 12 (ed. Fracasetti), vol. n. p. 547. 

2 Vide xxiii. 21 (vol. in. pp. 245-6): "Tu, quod olim dixi, ad 
imperium natus es, amplum excelsumque opus: illud age fideliter, 



310 THE PKOBLEM OF THE EMPIRE [CH. 

est quod imperii majestas ac providentia atque justitia, 
et his viribus armata, non possit 1 ." If he is Emperor, 
his main task must lie in Italy 2 — " extra quam ubi 
imperii caput quaeras nescio 3 ." He is lord of the 
world 4 , but Italy is the centre of his Empire. He 
may be German by birth, but Italy now claims him. 
" Quotiens in Germania inspexeris, Italiam cogita ; illic 
natus, hie nutritus, illic regnum, hie et regnum habes 
et imperium, et quod nationum et terrarum pace 
dixerim, cum ubique membra, hie ipsum caput in- 
venies....Te enim, ut libet, sibi Germani vindicent; 
nos te Italicum arbitramur 5 ." It is more important 
for what a man is born, than where 6 . And indeed 

bene si vixisse vis videri: alioquin quid juvat illas tuas ultimas 
mundi horas composuisse magnifice ? Hoc et sine imperio potuisses 
et fortasse facilius." 

1 Vide xxiii. 21 (vol. in. p. 246) : " Quod si forsan," he continues, 
" negatus tibi coelitus rerum finis; tamen glorioso in actu, quam in 
quiete languida mori, multo melius, multoque felicius opinor. Et 
hoc est quod divae memoriae avum tuum omnibus saeculis gloriosum 
fecit." Elsewhere, referring to Eienzi, he asks, " Si tantum ergo 
Tribunicium potuit, quid Caesareum nomen posset?" Vide xvni. 1 
(vol. ii. p. 464). 

2 Vide xvni. 1 (vol. n. p. 468): " Diruta est, inquis, imperii 
libertas: tu pater imperii dirutam restaurabis. Sumpta Latinis ser- 
vitus: tu illam tuorum cervicibus excuties." Cf. x. 1 (vol. n. p. 60) : 
" Hoc igitur primum fac, reliqua suum tempus invenient, quamquam 
placata ad plenum et composita Italia, nihil aut modicum putem 
negotii supererit." 

3 Vide xvni. 1 (vol. n. p. 467): " Nunquam te Italia, nunquam 
tu Italiam videbis, extra quam etc." 

4 Vide xn. 1 (vol. n. p. 160): " Loquor ecce iterum ad dominum 
meum, et, nisi piget, ad cunctorum dominum loquor." 

5 Vide x. 1 (vol. n. p. 59). 

6 Vide xix. 1 (vol. n. p. 514): "Jam juga Alpium transcendenti 
occurro animis : haud equidem solus : infinita mecum acies, quin ipsa 
nostrum omnium publica mater Italia, et Italiae caput Roma, tib 



Ill] THE PROBLEM OF THE EMPIRE 311 

Rome, the home of the Caesars — " queen of all cities 
and of the world" — is his true home: "patriam et 
solium tuum pete 1 ." 

Petrarch failed to allure Charles beyond the Alps ; 
unlike Dante, he found no living Emperor in whom 
he could realise his ideal Caesar. There is a note of 
despair and disillusion in Petrarch, that is not to be 
found in Dante ; already in 1356 he writes of the 
Empire as " boni...omnis effoetum et solius umbrae 
vetustatis innixum 2 ." Petrarch, indeed, turned else- 
where more than once to find the deliverer : twice he 

obviae, altis vocibus Virgilianum illud exclamant — ' Venisti tandem, 
tuaque expectata parenti Vicit iter durum pietas.' Neque vero Ger- 
maniae obtentu hanc fastidias aut repellas matrem, cum qua et vitae 
primordia egisti, et si tuum decus amas, extrema exiges. Nos te, 
Caesar, ut ab initio dicebam, ubicumque ortum Italicum arbitramur. 
Neque vero magni interest ubi sis natus, sed ad quid. Vive et vale, 
Caesar, et propera." 

1 Vide xxiii. 2 (vol. in. p. 193): " Habet jam Bohemia suum 
regem, tu Italiae mundique rex, post tergum linquendi orbis securus, 
et patriam et solium tuum pete. Nam etsi secundum apostolicam 
sententiam manentem hie non habeas civitatem, si qua tamen in 
terris patria est tua propria Caesarum domus, ac vera patria Roma 
est : quin et communis omnium est patria, rerum caput, orbis atque 
urbium regina." 

2 Vide the following passage from what was once, perhaps, the 
most popular of all Petrarch's works, De Remecliis Utriiisque Fortunae, 
lib. i. Dialog, cxvi. : Spes says: " Spero Principem venturum." 
Ratio answers: " Et illius commune omnium malum speras. Fuit 
enim quando et principes imperium et principem populi poterant 
sperare, nunc imperium principi labor est, princeps populi per- 
nicies." ...Spes: "Spero principem venturum." Ratio: " Et secum 
simul motus rerum varios, mutationes urbium, noxias novitates, 
famem, pestem, bella, discordias, haec vel universa vel singula 
modernis cum principibus venire sunt solita. Si haec placent, prin- 
cipem spera : ut nil horum formidabile sit, ipsum certe inane jam 
imperii nomen est plenum famae et rumorum; boni autem omnis 
effoetum et solius umbrae vetustatis innixum." 



312 THE PROBLEM OF THE EMPIRE [CH. 

sought him in Italy — in Rienzi and in Robert of Naples 1 . 
Gradually the idea took form that Italy's deliverer, 
Dante's "Veltro 2 ," must be a national king, who would 
weld the disunited nation into one — a hope that for 
nearly five centuries was to be the unrealised ideal 
of Italian patriotism 3 . An Italian contemporary of 
Petrarch expounds this as the one expedient left 4 : 

"0 figiiuol mio, da quanto crudel guerra 
Tutti insieme verremo a dolce pace, 
Se Italia soggiace 
A un solo re che al mio voler consenta." 

It is interesting to compare with the poem from 
which these lines are taken, another of almost con- 
temporary date, written in Latin by an acute German 
thinker, Lupoid of Bebenburg 5 . The German poet, 
weary with reading the " gesta Romanorum Cesarum," 
wandered into the country for his recreation and lost 
his way. Suddenly he found himself before a throne 
on which sat a queen, the splendour of whose crown 
and jewels amazed him. She bade him have no fear — 

1 Vide D'Ancona, 17 Concetto della Unita nei Poeti Italiani, pp. 18-25. 

2 Vide Inferno, i. 101-5. 

3 Vide D'Ancona, II Concetto della Unita, dx. pp. 25-30; La 
Politica nella Poesia, dx. (Dec. 1867), pp. 750-3. 

4 Vide Fazzio degli Uberti's (circ. 1305-circ. 1368) fine poem in 
Carducci, Rime di M. Cino da Pistoia e d' altri del secolo XIV, pp. 334- 
42. Vide pp. 340-1: " Un sol modo ci veggio, e quel dirai: | Che 
piglino quel Buemo (Carducci reads ' ' buono uom ' ' ; which as 
D'Ancona, II Concetto della Unita, dx. t note 66, points out, is 
inferior; "Buemo" obviously refers to Charles IV) che '1 pud 
fare, | Che mi debbe donare | Un virtuoso re che ragion tenga | E 
la ragion dello imppro mantegna | etc." 

5 ' ' Ritmaticum et Querulosum et Lamentosum Dictamen de 
Modernis Cursibus et Defectibus Regni ac Imperii Romanorum " (1341) 
in Boehmer, Fontes Rerum Germanicarum, vol. i. pp. 479-84. 



Ill] THE PROBLEM OF THE EMPIRE 313 

"Ait: 'Nichil paveas, audi que tibi pando. 
Ego sum,' inquid, 'sacrum imperium Romanum.'" 

She proceeded to give him her history, how she resided 
once in Rome, and transferred her seat thence, first to 
Constantinople, and later to Germany. She celebrated 
the great deeds and merit of Charlemagne, Otto and 
their earlier German successors, and the loyalty of the 
old German nobles. These memories made her weep, 
but the poet attempted to comfort her — 

"0 predulcis domina, quis est qui provocare 
Vos ad fletum potuit ? Nonne terram et mare 
Deus vobis tradidit? Quare non vindicatis 
Factas vobis iniurias ? Quam ob rem exspectatis ? ' ' 

She answered — " benigne " — 

"Inconsulte loqueris! Nam talia dicendo 
Contra tuam patriam allegas nescienter." 

The Germans no longer honour her or serve her and 
the " vicini gentes " desert her 1 — 

"Ex eo quod Germani sua, non mea, querunt." 
It is only their forefathers' loyalty which keeps her 
from once more transferring her seat ; and she ends 
by solemnly commanding the poet to declare to the 
German nobles that as, if they are loyal to her, they 
will find their reward, so, if they disobey her, 

"Ad gentem aliam in brevi transmigrabo, 
Et sedem ubi deo placuerit locabo, 

1 Vide lines 124-31 : 

"...Germani non multum me honorant, 
Parum mihi serviunt, ymmo, que sim ignorant. 
Vides, quod Ytalici me spernunt deridendo, 
Et suis pro lybito tyrannis serviendo. 
Hec offense patriam Germaniae contingunt, 
Sed ad has propulsandas gladiis se non cingunt." 



314 THE PROBLEM OF THE EMPIRE [CH. 

Eos juste deseram qui me deseruerunt, 

Immo que sim et qualis scire non curaverunt." 

Lupold's doggerel Latin seems centuries away from 
Fazzio degli Uberti's noble Italian ; yet the two were 
of one age and concerned with but one problem, only 
viewed from different standpoints. The Italian poet — 
" della mia donna ragionando " — also wandered out into 
the country, and there, among the flowers, fell asleep 
and had his vision of Rome — 

"E1P era antica, solenne e onesta, 
Ma povera pareva e bisognosa." 

She was surrounded with her old champions, the Roman 
heroes and Emperors, whom she names to the poet and 
whose deeds she celebrates. The good days are no 
more — 

"O lassa isventurata, 
Come caduta son di tanta altezza, 
La dove m' avean posto trionfando 
Gli miei figliuol, magnanima brigata ! 
Che m' hanno or visitata 
Col padre loro in tanta gran bassezza. 
Lassa ! ch' ogni virtu ogni prodezza 
Mi venne men quando morir costoro, 
I quai col senno loro 
Domaro il mondo e riformarlo in pace 
Sotto lo splendor mio, ch' ora si face 
Di greve piombo e poi di fuor par d' oro." 

There is nothing to hope for from Charles himself or 
from Naples ; all that she can now do is to pray 
that the Bohemian Emperor will give her and Italy 
" a single king " — 

"Un virtuoso re che ragion tenga 
E la ragion dello impero mantegna." 

The problem, we have said, was the same for both 



Ill] THE PROBLEM OF THE EMPIRE 315 

poets, but the standpoint of each was very different. 
The one took his stand in Germany, the other in 
Italy: both countries, historically in the closest con- 
nexion with the Empire, were faced with the problem 
of finding some alternative to the Empire, when the 
fall of the Hohenstaufen had left it powerless. Lupoid, 
like " Jordan of Osnaburg" or the author of the Notitia, 
can only appeal to the past; the appeal is amplified 
with immense skill and subtlety in his work Be Jure 
Regni et Imperii. The Italian, on the contrary, has 
broken with the past. The Empire is lost to Italy past 
hope of recovery. It has become German and must 
remain such. Italy — 

"L' Italo giardino 
Chiuso da' monti e dal suo proprio mare" — 

must now have its own national king. 

We are now to turn to another group of political 
writings of very great importance. The struggle 
between Philip the Fair and Boniface VIII gave rise 
to a large output of political pamphlets and manifestoes, 
both in France and elsewhere ; much, as in all such 
struggles, was ephemeral, but some of the writings, 
those produced in France especially, were of lasting 
consequence. Before we turn to these French apolo- 
gists, it will be well to consider some of the Papal 
claims, which they set out to answer. 

The very large place, which the pretended Donation 
of Constantine occupies in medieval political thought, 
does not correspond to the actual use which the Popes 
themselves made of it. None of the greatest medieval 
Popes — Gregory VII, Innocent III, Innocent IV, or 
Boniface VIII — appealed to it at the most important 



316 THE PEOBLEM OF THE EMPIRE [CH. 

crises of their struggles with Emperors and other 
secular rulers 1 . To appeal to it was, of course, to 
appeal to a human document, as the basis for the Papal 
claim to temporal power. Besides, though the authen- 
ticity of the Donation was rarely questioned before the 
Renaissance 2 , its validity was often and openly denied; 
many held it either absolutely void or, even if valid, 
revocable by Constantine's successors. This may well 
account for the fact that the Popes seemed no more 
inclined to appeal to it, even after a theory had become 
current among the Papalist writers, which explained 
the Donation as, properly, the restitution of that which 
de jure already belonged to the vicar of Christ. This 
clearly avoided the awkward conclusion that the tem- 
poral power of the Pope rested upon a human founda- 
tion. Innocent IV seems to have been the first to 
give this explanation 3 ; yet he did not appeal to 
the Donation in his struggle with, or deposition of, 
Frederick II. 

Extracts from the document were in the Decretum, 
though not originally included by Gratian himself. 
And in view of the place which it occupies in medieval 

1 Vide Zinkeisen, "The Donation of Constantine as applied by 
the Roman Church" (in English Historical Review, vol. ix. 1894, 
pp. 625-32). 

2 Vide Zinkeisen, op. cit. pp. 629-30. Already Otto III seems to 
have doubted its genuineness, as also S. Henry II, " showing that it was 
the settled Imperial policy to disregard it." Vide a note by Lea in 
vol. x. of the Engl. Hist. Review (1895), p. 86. It was denied by the 
Arnoldists. Vide the end of note 283, p. 182, in Gierke, Pol. Theories 
of the Middle Age, and Dollinger, Fables respecting the Popes of the 
Middle Ages (Transl. by Plummer), pp. 141-2. 

3 Vide Lane Poole, Illustrations of the History of Medieval Thought, 
p. 250; Gierke, loc. cit. 



Ill] THE PROBLEM OF THE EMPIRE 317 

thought, we cannot pass it by, however few the 
appeals to it in the world of actual politics. The 
arguments and theories which it occasioned, both in 
the Papalist writers and their opponents, are for our 
purpose of great importance 1 . 

The idea of the Donation, as properly a restitution 
to the vicar of Christ of that which by right was his 
long since, was elaborated by the continuator of the 

1 It will be convenient to give here the references to the Papalist 
authors, to whom we shall refer. Leaving out of account Aquinas and 
the continuator of Aquinas' treatise Be Reg. Princ, whom we have 
met before, we shall confine ourselves, apart from references to 
the Popes themselves, to contemporaries of Boniface. These are 
(1) Augustinus Triumphus. His great Summa de Eccles. Potestate 
was dedicated in 1320 to Pope John XXII, but there have lately been 
printed four small treatises ascribed to him, which date from the 
present struggle. Three of these are printed by Scholz in his 
Publizistik zur Zeit Philipps des Schnnen und Bonifaz VIII. The 
treatises are (a) " De duplici potestate praelatorum et clericorum," 
Anhang, pp. 486-501; (b) " De potestate collegii mortuo Papa," 
Anhang, pp. 501-8; (c) " De facto Templariorum," Anhang, pp. 508- 
16. The fourth treatise is printed by Finke in his Aus den Tagen 
Bonifaz VIII, Quellen, pp. lxix.-xcviii., though not in full. It is 
named " Tractatus contra articulos inventos ad diffamandum Sanctis. 
patrem dom. Bonifacium, etc." Finke prints it as anonymous, but 
Scholz, op. cit. pp. 175-6, ascribes it confidently to Augustinus. We 
shall make use of the first and fourth of these treatises. (2) Henry of 
Cremona, " De Potestate Papae," printed in Scholz, op. cit. Anhang, 
pp. 459-71. This treatise is especially interesting, as Henry of 
Cremona's opinions are combated by John of Paris and, according 
to Scholz, by other French writers as well, who do not, however, 
mention him by name, as John of Paris does. In John's treatise, 
as printed in Goldast, Monarchia S. Romani Imperii, he appears as 
"Johannes de Cremona." This is incorrect, vide Scholz, pp. 242-3, 
281-2, 289. (3) An anonymous treatise on the Bull Clericis Laicos, 
printed in Scholz, op. cit. Anhang, 471-86. Scholz thinks that the 
author may be Henry of Cremona. Finally, "Dupuy" refers to the 
" Preuves " in his Histoire du Bifferend d'entre le Pape Boniface VIII 
et Philippe le Bel, etc. 



318 THE PROBLEM OF THE EMPIRE [CH. 

treatise Be Regimine Principum 1 of Aquinas, in a 
manner that deserves special attention. 

The Roman Empire is the fourth in the series of 
" monarchiae " which forms the history of the world : 
it follows the Empires of the Assyrians, of the Medes 
and Persians, and of the Greeks. But 'nos quintam 
possumus addere " — the " monarchia " of Christ, " qui 
fait verus Rex et Sacerdos et verus Monarchal" This 
Empire was His when He came to earth 3 ; thus, to 
begin with, our author must show why Christ chose 
an " abject life " and why the Pagan Roman Emperors 
were allowed to continue ruling. He holds that 
Augustus and his successors were, unknown to them- 
selves, the vicegerents of Christ. And so, instinctively, 
Augustus refused to be called " dominus," while 
Tiberius wished Christ " tamquam verum dominum 
inter deos transferri," but was prevented 4 . Christ 

1 Vide in. 12-18. 2 Vide in. 12, p. 15. 

3 Vide in. 14, p. 15 verso: " Sed tunc oritur quaestio de justo 
Domini principatu, quando incepit, quia constat multos postea im- 
perasse, ipse vero abjectam vitam elegit. Item in Joanne scribitur 
quod cum pavisset multitudinem, abscondit se quia volebant eum 
populi rapere ac regem facere. Item in eodem ipse dicit: Regnum 
meum non est de hoc mundo. Ad banc autem quaestionem est 
responsio, quia principatus Christi incepit statim in sua nativitate 
temporali. ' ' 

4 Vide in. 13, p. 15 verso: "In quo vero satis apparet quod 
dominium Christi ordinatur ad salutem animae et ad spiritualia 
bona ut jam videtur, licet a temporal ibus non excludatur, eo modo 
quo ad spiritualia ordinatur.... In humilitate ergo vixit et demum in 
Augusto substituit ut describeretur universus orbis in ortu domini, ut 
Lucas evang. testatur. Et in hac descriptione solvebatur census sive 
tributum, ut historiae tradunt, in recognitionem debitae servitutis, 
non sine mysterio, quia ille natus erat qui verus erat mundi dominus 
et Monarcha, cujus vices gerebat Augustus, licet non intelligens, sed 
nutu Dei, sicut Cayphas prophetavit. Unde hoc instinctu dictus 



Ill] THE PROBLEM OF THE EMPIRE 319 

chose the "abject life" for good reasons, to teach 
princes humility — " per quam quis redditur in regi- 
mine gratiosus 1 " — and to show that His "dominium" 
was different from that of others. " Quamvis enim 
temporaliter esset dominus orbis, directe tamen ad 
spiritualem vitam suum ordinavit principatum 2 ." 

Thus Christ permitted the secular Emperors to rule, 
both in His life and after His death, until His kingdom 
should be perfect : and to that perfection the virtues 
and martyrdoms of the Christians contributed 3 . When 
the right moment came, Constantine was struck down 
with leprosy. Healed miraculously by Pope Sylvester, 
he executed the Donation, or rather '" cession," by which 
he restored to Christ's vicar what de jure was owing 
to him. " In qua quidem cessione spirituali Christi 
regno adjunctum est temporale, spirituali manente in 
suo vigore 4 ." 

After the removal of the Empire to Constantinople 
the Emperors, excepting the Arian Constantius and the 
apostate Julian, were all obedient to the Papacy 5 . He 

Caesar mandavit tunc ternporis, ut narrant historiae, ne quis de 
Romano populo dominum ipsum vocaret, etc." 

1 Vide in. 14, p. 15 verso. 2 Vide in. 15, p. 16. 

3 Vide in. 16, p. 16 verso. 

4 Vide in. 16, p. 16 verso: " Opportuno igitur tempore ut mani- 
festaretur mundo regnum Christi compositum, virtus principis nostri 
Jesu Christi principem mundi sollicitavit, Constantinum videlicet, 
percutiens eum lapra, ac ipsum sanans supra humanam virtutem. Qua 
probata in dominio cessit vicario Christi, beato videlicet Sylvestro, cui 
de jure debebatur, causis et rationibus supra assignatis. In qua quidem 
cessione spirituali Christi regno adjunctum est temporale, spirituali 
manente in suo vigore. Quia illud per se quaeri debetur Christi 
fidelibus, istud vero secundario tamquam administrans primo. Aliter 
autem contra intentionem fit Christi." 

5 Vide in. 17, p. 16 verso : " Istud autem notabile abinde usque ad 



320 THE PROBLEM OF THE EMPIRE [CH. 

illustrates this from the history of the ecclesiastical 
Councils 1 . Then, when the Lombards oppressed the 
Church and the Eastern Empire gave no help — "quia 
forte non poterat 2 " — the Pope summoned the Frankish 
king to his aid and transferred the Empire to him 3 . 
With Charlemagne the Empire became hereditary, and 
so it remained until Gregory V instituted the Imperial 
Electors 4 . 

We have met this theory of a " quinta monarchia " 
of Christ, succeeding the "monarchiae" of the Assyrians, 
the Medes and Persians, the Greeks and the Romans, 
in Bartolus himself. Bartolus gave it "adhaerendo 
opinioni S. Matris Ecclesiae," and there seems no 
reason against supposing that he has taken it from our 
present author. But it occupies no great space in the 
thought of Bartolus, while our very brief sketch above 
can hardly, perhaps, do justice to the elaborate and 
lengthy treatment of this theory by the continuator of the 
treatise of Aquinas. He has combined into one picture 
the succession of " world-monarchiae," the Donation, the 
" translatio imperii " and the supposed appointment of 

tempora Caroli magni de imperatoribus refertur, omnes quasi obedi- 
entes et reverentes fuisse Romanae ecclesiae, tamquam ipsa principatum 
teneret, sive respectu spiritualis dominii, sicut sancta synodus Nicena 
diffinit, sive temporalis." 

1 Vide in. 17 and 18. 

2 The author's favourable attitude to the Eastern Emperors is 
worth noticing. 

3 Vide in. 19. 

4 Vide in. 19: " Et tantum durabit," he says (p. 17) of this 
institution of the Electors, "quantum Romana ecclesia, quae 
supremum gradum in principatu tenet Christi fidelibus expedire 
judicaverit." These are very significant words and must, of course, 
be taken in connection with the Papal projects, which we considered 
above. 



Ill] THE PROBLEM OF THE EMPIRE 321 

the electors by Gregory V. All these elements in his 
picture had very different origins. The idea of the four 
" monarchiae " went farthest back. The Donation was 
a forgery of the eighth or ninth century. Innocent III, 
in a famous Decretal, had established the Papal doctrine 
of the " translatio imperii." The supposed appointment 
of the Electors by Pope Gregory V dated from even 
later 1 . From all these diverse sources our author has 
constructed a single picture of the Empire's history. 
Bartolus had no such aim. He introduced this idea 
of the " quinta monarchia " of Christ, when discussing 
whether de jure the Emperor is lord of the world. He 
was mainly thinking of the Empire as a territory : the 
Empire having become the Empire of Christ, the Pope, 
Christ's vicar, is considered as delegating a part of it, 
which becomes the territory of the Empire, to the 
Emperor, reserving a part to himself — the territory of 
the Church. Bartolus, when he discussed the Dona- 
tion of Constantine, did not return to this version 



1 Vide the Decretal Venerabilem (Decretal, i. 6. 34): " Verum illis 
principibus jus et potestatem eligendi regem in imperatorem postmodum 
prornovendum, recognoscimus, ut debemus, ad quos de jure ac antiqua 
eonsuetudine noscitur pertinere, praesertim quum ad eos jus et potestas 
hujusmodi ab apostolica sede pervenerit, quae Romanum imperium in 
personam Caroli a Graecis transtulit in Germanos." Innocent, we see, 
does not rest the institution of the Electors on Gregory V— it is the im- 
mediate result of the ' ' translatio. ' ' Here he is at one with the Germans 
(vide ' ' Jordan ' ' above) , the difference being that Innocent thence argues 
for the dependence of the Electors on the Papacy, while Jordan denies 
that the ' ' translatio ' ' was the mere work of the Pope and ascribes the 
appointment of the Electors to Charlemagne himself. The supposed 
appointment by Gregory V is general among the Papalists by the end 
of the thirteenth century. The history of the Papal theory of the 
"translatio " is traced in detail by Dollinger in The Empire of Charles 
the Great and his successors, pp. 150-80. 

W. 21 



322 THE PROBLEM OF THE EMPIRE [CH. 

of the Empire's history. On the contrary, he took the 
Donation to be a real donation, not a "restitution," 
and based the " territorium Ecclesiae " on it. The two 
views as to the origin of the territory of the Church 
are, as we remarked, irreconcilable ; but one may feel 
pretty certain that the latter would have been the view 
of Bartolus, had he not been in a country " friendly " to 
the Church. With our other author it is very different. 
His purpose in tracing the history of the Empire was to 
show that the true Emperor is now the vicar of Christ, 
the Pope. Bartolus might accept that theory on occa- 
sion, "adhering to the opinion of the Church," but it 
was not the general theory of the Empire with which 
he worked, and hardly could be. 

But, returning to the Papalist theories, we must see 
that it is not merely by virtue of the Donation that the 
Pope claimed to be the true Emperor. "Adveniente 
Christo istud Romanorum Imperium incepit esse Christi 
Imperium." The Donation merely marked the de facto 
assumption of that Empire by the vicar of Christ ; de 
jure it was his before. This is very clearly expressed 
by Henry of Cremona 1 . The jurists, he says, maintain 
that Constantine was the first to donate the Church, 
" que antea nil habebat." But, he answers, this was not 
"defectus juris," but "defectus potencie." God "in- 
spiravit Constantinum, ut renunciaret imperio et 
confiteretur se ab ecclesia illud tenere, nee tunc ut 

1 Vide De pot. Papae, pp. 467-8: " Praeterea opponunt juriste: 
talia non fiebant ante Constantinum, et Constantinus primo dotavit 
ecclesiam que ante nil habebat. Sed quod ecclesia ante non faciebat 
talia, non erat defectus juris, sed potencie.... Ibidem dominus voluit 
fidei sub venire et hoc [aliter] bene fieri non poterat, humano more 
loquor, nisi potentiam ecclesie dando. Quare inspiravit, etc." 



Ill] THE PROBLEM OF THE EMPIRE 323 

quidam dicunt, fuit dotata primo de jure, sed de facto, 
sicut satis manifestum est, quod imperator ecclesie dare 
non potuit licentiam habendi proprium nee etiam potuit 
bona imperii alienare : unde non dedit, sed recognovit 
[ab ecclesia] et ecclesia sine peccato proprium habet 1 ." 
It is clear that the continuator of the treatise of Aquinas, 
though he does not say so perhaps in so many words, 
also considers the Donation, or "restitution," as including 
the whole Empire, and that therefore the Emperors at 
Constantinople, whose obedience he notes so approvingly, 
must be considered as Emperors merely by delegation 
from the Popes 2 . And, of course, it was by virtue of 
such a theory that the "translatio imperii" under Charle- 
magne was expounded from the Papal standpoint. The 
true Monarcha or Imperator is the Pope, the vicar of 
Christ 3 . The reigning Emperor is his delegate. 

But if the Pope is the true Roman Emperor, is 
there necessity for this temporal Emperor, his delegate ? 
Of course the development of the Antichrist legend 
demanded the existence of a Roman Empire. The 
theory of the "quinta monarchia" of Christ did not 

1 The way Henry of Crernona here takes his opponents' argument 
against the possibility of alienating the ' ' bona imperii ' ' and turns it 
to his own account is very interesting. He is, however, evidently not 
completely convinced himself, for a little later he adds: " Si impera- 
tores aliquod jus habebant, propter peccata que commiserunt occidentes 
fideles in Christo, maxime summos pontifices, divinitus illo jure 
privati fuerunt, quia privilegium meretur amittere qui permissa sibi 
abutitur potestate." 

2 Vide above, p. 319, note 5: " Omnes quasi obedientes et 
reverentes fuisse Romanae ecclesiae, tanquam ipsa principatum 
teneret, sive respectu spiritualis dominii...sive temporalis." 

3 Gierke, Political Theories of the Middle Age, note 12, p. 107, 
says that already in the twelfth century many of the canonists say: 
"Papa ipse verus Imperator." 

21—2 



324 THE PROBLEM OF THE EMPIRE [CH. 

mean that the Roman Empire had ended. There was no 
such break between the fourth and fifth "monarchiae" as 
between that, for example, of the Medes and Persians 
and that of the Greeks. The Roman Empire still 
existed, but it had become the Empire of Christ — 
"incepit esse Christi imperium." There was thus no 
absolute necessity for a temporal Emperor and a 
temporal Empire, delegates of and dependent on the 
vicar of Christ, the true Roman Emperor. The Papacy 
did, indeed, need a temporal power — though by right it 
had both swords, it needed a delegate to whom it could 
normally entrust the temporal one, to be used for its 
own defence and at its command. But lesser powers 
than Emperors could have supplied this need. The Popes 
might insist that the Emperor was their delegate, even 
their vassal, but history was very obviously against 
them. The Empire however fallen, might always be 
dangerous. It claimed to be universal — it had still more 
dangerous claims over Italy. Then, with the rise of 
national states, ever more and more jealous of any sug- 
gestion of their subjection to the Roman Empire, even 
the need of a Roman Empire began to be doubted. 
We shall see John of Paris asking why the Roman 
Empire should not give way to others, as older Empires 
gave way to it ; why France could not have prescribed its 
independence against Rome, as Rome had against the 
Greeks. Now John of Paris had no intention of recog- 
nising the Pope as the "verus imperator." On the 
contrary, he expressly rejected the idea 1 . He was argu- 
ing against the need of any Roman Empire at all. This 
was a bold position, because directly opposed to the 
1 Vide below, p. 346, note 1. 



Ill] THE PROBLEM OF THE EMPIRE 325 

traditional belief in the absolute necessity of the Roman 
Empire, as standing between the world and Antichrist. 
The argument of John of Paris amounted in effect to 
a justification of that dismemberment of the Empire 
by the " discessio " of the Regna, which was one of 
the signs that would herald the coming of Antichrist. 
Now the Papalist did recognise the Pope as the Em- 
peror: consequently from the Papalist standpoint the 
disappearance of the temporal Emperor and Empire 
would leave the true Roman Empire still standing. 
An interesting passage in Aquinas will illustrate this. 
" Quomodo est hoc ? " he asks, in his Commentary upon 
the Epistles to the Thessalonians 1 , referring to the 
prophesied secession of the kingdoms from the Roman 
Empire ; " quia jamdiu gentes recesserunt a Romano 
imperio, et tamen necdum venit Antichristus. Dicen- 
dum est quod nondum cessavit, sed est commutatum de 
temporali in spirituale, ut dicit Leo Papa in sermone 
de apostolis : et ideo dicendum est quod discessio a 
Romano imperio debet intelligi non solum a temporali, 
sed a spirituali, id est a fide catholica Romanae 
ecclesiae." Thus to Aquinas the Empire was already 
dissolved. But that was true only of the temporal 
Empire. The Roman Empire still stood — " nondum 
cessavit, sed est commutatum de temporali in spirituale." 
The " discessio " of the kingdoms from the temporal 
Empire might have taken place, but the final "dis- 
cessio," which was to herald Antichrist, was to be from 
the spiritual Roman Empire — " id est a fide catholica 
Romanae ecclesiae." 

1 The passage is quoted by Lane Poole, Illustrations of the History 
of Med. Thought, p. 246, note 19. 



326 THE PROBLEM OF THE EMPIRE [CH. 

The belief that the prophesied " discessio " was to 
include the " discessio " of the churches from the 
Roman see, as well as that of the kingdoms from the 
Empire, was common enough in the Middle Ages 1 . We 
saw in Engelbert a triple " discessio " — that of the 
kingdoms from the Empire, of the churches from the 
Papacy, of the faithful from the faith. Now Aquinas was 
not thinking here of the " discessio " of the churches 
from the Papacy, but of the " discessio " of the king- 
doms from the Empire ; and by distinguishing between 
the temporal and the spiritual Empire, he could allow 
that the " discessio " from the temporal Empire had 
already taken place, while leaving the true Roman Em- 
pire intact — " commutatum de temporali in spirituale." 
Its end would come when the Regna, which have already 
receded from the temporal Roman Empire, receded from 
the spiritual Roman Empire as well, that is to say, from 
the Roman Church, in which the old temporal Empire 
was merged. 

None the less the Papalist theory in general did 
not argue for the non-necessity of the temporal Emperor 
nor assume that the temporal Empire was already 

1 Vide e.g. the treatise, Be Advent u et Statu et Vita Antichristi, 
ascribed to Aquinas himself, p. 38: "Circa statum praedicationis 
notatur quod ante praedicationem Eliae et Henoc praecedent quatuor. 
Primo dissidium regnorum a Romano imperio....Quia medium est dum 
universis circumquaque gentibus imperat, quibus ab ipso recedentibus, 
de medio auferetur, et tunc ille iniquus opportuno sibi tempore reve- 
labitur....Secundo, inobedientia ecclesiarum Romanae ecclesiae...." 
This treatise was printed for the first time, along with another treatise, 
De Preambulis ad Judicium, etc. at Rome in 1840. Their editor, 
F. Hyacinthus de Ferrari, ascribed them both to Aquinas. They were 
printed in the subsequent Parma ed. of Aquinas (1852-73), vol. xvn., 
but their authenticity was very much doubted. Vide the preface to 
vol. xvn. pp. 3-4. 



Ill] THE PROBLEM OF THE EMPIRE 327 

dismembered. The outlook of the Papalists varied 
according to the circumstances under which they wrote. 
But, in general, it may be said that their object was, not 
to deny the existence of the temporal Emperor or the 
necessity of his existence, but to insist on his subjection 
to the Pope. For, after all, the temporal Emperor and 
Empire were there. The Pope might be the " true " 
Emperor — but it could not be denied that there was 
a temporal Emperor as well. The existence of this 
temporal Empire was a fact, not to deny, but to explain. 
We have seen the elaborate explanation offered by the 
continuator of the Be Regimine Principum of Aquinas ; 
as to Aquinas himself, we may remember that he died 
in 1274, so that his active literary life fell in the period 
of the long Interregnum. Then the temporal Empire 
did seem to have disappeared, while the theory of the 
Pope as " verus imperator " received additional signifi- 
cance, since his right to administer the Empire during a 
vacancy was very widely allowed. It was very different 
when the Interregnum had ended. If Boniface VIII, 
in the well-known, but doubtful 1 , story, exclaimed to 
the German ambassadors, as he sat crowned upon his 
throne — " Ego sum Caesar 2 ," we shall see that, as a 
matter of fact, he found a distinct use for a temporal 
Empire and a temporal Emperor. 

1 Vide the monograph of Niemeier on the relations between 
Boniface and Albert, to which we shall have occasion to refer below, 
Untersuchungen liber die Beziehungen Albrechts I zu Bonifaz VIII, 
pp. 47-50. 

2 The claim made in the Document, known as the " Dictatus 
Papae " and included in the Registrum of Gregory VII (in Monumenta 
Gregoriana, p. 174), that "solus pontifex possit uti imperialibus in- 
signiis " may well be considered in connexion with this story, whether 
the " Dictatus " be by Gregory himself or not. 



328 THE PROBLEM OF THE EMPIRE [CH. 

Needless to say, these "Imperial" claims of the 
Popes were strenuously denied. We shall see French 
writers arguing that the Donation, even if valid, gave 
only a " certain provinciam," not the whole Empire, 
which Constantine transplanted to the East, and of 
course not France itself. By denying that the Dona- 
tion included the Imperium, they could even throw 
doubts on the " translatio imperii." On the other hand, 
they were sometimes willing to acknowledge, always 
supposing its validity, that the Donation might have 
given the Popes the dominion at least of Italy. And 
though the Popes themselves seemed very reluctant to 
base their wider claims upon this document, they did at 
times appeal to it in asserting their rights over Rome 
and the Papal territory in Italy. We may also illus- 
trate this by an interesting passage from the Summa 
of Augustinus Triumphus 1 — a writer who had no inten- 
tion of understating Papal claims. He maintains that 
the Pope, as vicar of Christ, has universal jurisdiction, 
both temporal and spiritual, "in toto orbe terrarum," 
but "ipsorum temporalium immediatam administra- 
tionem non recipit nisi in regionibus occidentalibus 
imperii per concessionem factam ecclesie a Constantino." 
Here, we see, the Donation is held to give an "im- 
mediata administratio " in the western portion of the 
Empire. Nothing is said of the East ; but we may 
suppose that he includes France in the "regionibus 
occidentalibus imperii." For he goes on to explain 
how it is that the Church only uses this " temporalis 
administratio " in Italy, " mediante Imperatore quern 
eligit," and not in other parts of the West. It is not 
1 Vide Quaest. xlv. art. 2. 



Ill] THE PROBLEM OF THE EMPIRE 329 

because it lacks authority, but for the sake of peace 
and unity — "quia ex quo imperium fuit divisum et 
a diversis partibus diversimode et tyrannice usurpa- 
tion, ecclesia propter vitandum scandalum et schisma 
temporalium administrationem in regnis illis dimisit, 
propter cujus scandali vitationem salvator humani 
generis etiam se tributarium fecit." 

Augustinus here recognises that the Popes use 
their de jure universal temporal jurisdiction, and the 
" immediata administrate " derived from the Donation 
of Constantine, de facto only "in partibus Ytaliae." 
This can also be illustrated from the words of two 
of the Popes themselves. Gregory IX, in a letter to 
Frederick II 1 , recalls to Frederick the good examples 
of his predecessors, and lays special stress, in mention- 
ing the Donation, on the surrender of the city "cum 
toto ducatu suo." Similarly Nicholas III 2 , skilfully 

1 Vide " Epistolae Saeculi XIII " (in Mow. Germ. Historica), vol. i. 
p. 604. 

2 Vide Sext. i. 6. 17 (The Decretal Fundamenta Militantis Ec- 
clesiae) : " Isti (SS. Peter and Paul) sunt, quid illanvin banc gloriam 
provexerunt, ut sit gens sancta, populus electus, civitas sacerdotalis 
et regia, per sacrarn beati Petri sedem caput totius orbis effecta. 
Ne autem ipsa mater ecclesia in congregatione et pastura fidelium 
temporalibus careret auxiliis...non absque miraculo factum esse con- 
cipitur, ut occasionaliter Constantini monarchae a. Deo provisa, sed 
curata baptismalibus fomentis infirmitas, quandam quasi adjiceret 
ipsi ecclesiae firmitatem, qui quarto die sui baptismatis, una cum 
omnibus satrapis et uni verso senatu, optimatibus etiam et cuncto 
populo, in persona beati Silvestri sibi Romanam concedendo urbem 
relinquens, ab eo et successoribus ejus per pragmaticum constitutum 
disponendam esse, decernens in ipsa Urbe utriusque potestatis mo- 
narcbiam Romanis pontificibus, declararet, non justum arbitrans ut, 
ubi sacerdotii principatum et Christianae religionis caput imperator 
coelestis instituit, illic imperator terrenus babeat potestatem; quin 
magis ipsa Petri sedes, in Romano jam proprio solio collocata, 



330 THE PROBLEM OF THE EMPIRE [CH. 

applying to the Roman church the famous words 
with which Pope Leo apostrophised the Romans — " ut 
sit gens sancta, populus electus, ci vitas sacerdotalis et 
regia, per sacram beati Petri sedem caput totius orbis 
efTecta " — appeals to the Donation as giving the Pope 
temporal authority over the city of Rome. This limited 
claim is explained by the fact, that in this decretal 
Nicholas was regulating the Roman Senatorship, pro- 
viding especially against its assumption by powerful 
foreign princes 1 . 

The Popes, in the claims which they made as Italian 
princes, might occasionally appeal to the Donation. The 
wider claims which they made as Popes, that is to say, 
as vicars of Christ, the Priest and King, were never 
shortened. The thunderous words, which end the Bull 
Unam Sanctam 2 — a Porro subesse Romano pontifici omni 
humanae creaturae declaramus, dicimus, diffinimus et 
pronunciamus omnino esse de necessitate salutis " — ex- 
pressed no new doctrine. They put the papal claims in 

libertate plena in suis agendis per omnia potiretur, nee ulli subesset 
homini, quae ore divino cunctis dignoscitur esse praelata." 

1 With the special claim of this decretal over Rome may be 
compared Aquinas, De Reg. Prin. i. 14, p. 5 verso. Having main- 
tained that kings of the Christian people are subject to the Pope, 
he allows that priests were below kings among the Gentiles and in 
the Old Testament: " sed in nova lege est sacerdotium altius, per 
quod homines traducuntur ad bona coelestia. Unde in lege Christi 
reges debent sacerdotibus esse subjecti." And he goes on to point 
out how, by divine providence, the custom grew up in the city of 
Rome, " quam Deus praeviderat christiani populi principalem sedem 
futuram," that the Rectores of the city should be subject to the Pope. 
" Sicut enim Maximus Valerius refert, omnia post religionem ponenda 
semper nostra civitas duxit, etiam in quibus summae majestatis decus 
conspici voluit. Quapropter non dubitaverunt sacris imperia servire." 

2 Extrav. Commun. i. 8. 1. 



Ill] THE PROBLEM OF THE EMPIRE 331 

their most imposing and least conciliatory form, but the 
claims were not new. The doctrine of the " plenitudo 
potestatis " went back to Innocent III, and, in its 
essence, to Gregory VII 1 . The "plenitudo potestatis" 
was, as Dr Figgis has said 2 , nothing less than sovereignty 
in a strict Austinian sense — sovereignty at once temporal 
and spiritual over the universe, or at least over uni- 
versal Christendom. Into the general theories, which 
supported that claim, we have here no need to inquire. 
Their character and the ideas upon which they rest 
need no new exposition. It is the " Imperial " claims 
of the Papacy which especially concern us ; we must 
consider a little more closely their place in the theories, 
upon which the Papacy based its claim to the obedience 
of the King of France. 

The Popes had before now come into conflict with 
the kings of France and England, but the struggle of 
Boniface with Philip the Fair and Edward of England 
was the first which could compare in importance with 
the former struggles between the Papacy and Empire. 
Indeed, France had come to be considered as the 
special ally and defender of the Papacy 3 . The present 

1 Vide Gierke, Political Theories of the Middle Age, note 131, 
p. 144. 

2 From Gerson to Grotius, p. 17. 

3 Augustirms Triumphus compares trie past and present conduct 
of France: "Nam dicemus, quod in domo Franciae zelus christiane 
fidei et reverencia sancte matris ecclesie et liberacio ejus pastorum de 
manibus imperatorum et aliorum persequencium eos temporibus retro- 
actis potissime viguit et refulsit in tantum, ut domus ilia quasi 
autonomastice et per quandam superexcellentiam capud christianorum 
et relatrix ac defensatrix fidei orthodoxe ubique diceretur et predi- 
caretur. Ex tali nomine ergo et ex tali forma reges moderni gentis 
Francorum, eorum predecessorum vestigia non sequentes, in tantum 
sunt in superbia elati, quod quasi admodum regis Nebuchodonosor 



332 THE PROBLEM OF THE EMPIRE [CH. 

struggle was, in fact, an interlude. The events in 
Italy, following the fall of the Hohenstaufen, when the 
Papacy had too eagerly embraced the French-Angevin 
alliance, led up directly to this struggle between Philip 
and Boniface. Its result was the Avignon exile, the 
trophy of Philip's victory. Avignon meant that the 
King of France did not intend to let the Papacy back 
out of an alliance, which had been, and was to be, 
of the highest advantage to France. 

Boniface himself repeatedly recalled his intimate 
knowledge of France, and the proofs which he had given, 
of his affection for her 1 . He had certainly no prejudice 
in favour of the Empire. He had refused to recognise 
Albert as king of the Romans, when, after the death of 

nolunt aliquem super se recogrioscere." Vide the Tract, contra 
articulos, etc., p. lxxxvi. Aquinas, De Reg. Prin. i. 14, p. 5 verso, 
sees in the pre-eminence of the Druids in old Gaul a divine presage 
that ' ' f uturum erat ut in Gallia Christiani sacerdotii plurimum 
vigeret religio." 

1 Vide the speech of Boniface in a Consistory held in 1302 (in 
Dupuy, pp. 78-9): "Prima est quod nunquam volumus respondere 
juxta stultitiam suam, quia in quantum in nobis est, volumus esse 
in pace et in amore cum rege, quia semper dileximus regnum et illos 
de regno, et sciunt multi qui hie sunt, quod ego semper quamdiu fui in 
cardinalatu fui Gallicus, ita quod frequenter fuit mihi improperatum 
a fratribus meis Romanis, a quodam qui est mortuus, et etiam ab alio 
qui est juxta me, quod eram pro Gallicis et contra Romanos; dicebant 
enim quia semper alii cardinales Campani f uerant cum Romanis : 
etiam postquam fuimus in statu isto multum dileximus regem, et 
fecimus ei multas gratias, quas nolumus modo explicare per singula, 
quia melius sederet in ore alterius quam in nostro. Audemus dicere 
quod vix teneret rex pedem in stallo nisi nos essemus; cum enim 
insurgerent contra eum Anglici, et Alemanni et quasi omnes majores 
subditi et vicini ejus, ipse habuit triumphum de omnibus— et per 
quern ? nos — et quomodo ? per depressionem adversariorum suorum. . . . 
Nos scimus secreta regni, nihil latet nos, omnia palpavimus, nos scimus 
quomodo diligunt Gallicos Allemanni, et illi de Lingadoch et Burgundi 
etc." Cf. the Bull Ausculta Fill of the year 1301 (in Dupuy, p. 48). 



Ill] THE PROBLEM OF THE EMPIRE 333 

Adolph, Albert had applied for recognition. But the 
great struggle with France altered matters ; and in 
April 1303 Boniface recognised Albert as king of the 
Romans, in return for which Albert was well pleased 
to own the dependence of his crown upon the Papacy, 
while acknowledging his past errors and his duty of 
future obedience. 

A report of the speech, which the Pope made on 
this occasion to the envoys of Albert, has come down 
to us, and is of the greatest importance for the proper 
understanding of the literature, which we are about 
to examine. Boniface 1 begins by recalling the old 
simile of the two luminaries — the sun and the moon, 
that shines only with borrowed light — but he gives it 
a special interpretation to fit the occasion. This time 
the sun is to be the king of the Romans, "qui est 
sol sicut monarcha qui habet omnes illuminare et 
spiritualem potestatem defendere, quia ipse est datus 
et missus in laudem bonorum et in vindictam male- 
factorum." Then he recalls that vicar of Christ, the 
successor of S. Peter, transferred the Empire to the 
Germans and gave the right of election to the seven 
princes, who are to elect a king of the Romans, "qui 
est promovendus in imperatorem et monarcham om- 
nium regum et principum terrenorum." Then follow 
memorable words which have often been quoted : " Nee 

1 The speech is to be found in a Memorial of the Consistory at 
which the recognition took place. The whole Memorial is printed 
by Niemeier, Untersucliungen ilber die Beziehungen Albrechts I zu 
Bonifaz VIII, pp. 114-28, the Pope's speech occupying pp. 114-18. 
Niemeier maintains the trustworthiness of the speech as reported, 
which had been doubted : vide pp. 109 ff . The Memorial as a whole 
had not been printed before. 



334 THE PROBLEM OF THE EMPIRE [CH. 

insurgat hie superbia gallicana, que dicit quod non 
recognoscit superiorem. Mentiuntur, quia de jure sunt 
et esse debent sub rege Romano et imperatore 1 ." He 
contrasts Albert's present devotion and obedience with 
his former arrogance. And he reminds the Germans 
that, as the Empire was transferred to them by the 
Pope, so, if he wish, he may again transfer it elsewhere 
— " et hoc sine juris injuria 2 ." He supplies the many 
defects in Albert's election, because he hopes well of him ; 
his father was the good king Rudolph, " catholicus, fidelis 
et devotus isti ecclesie, homo verax et veridicus." But 
he warns Albert, that should he belie his hopes, he, 
the Pope, could easily repress him. " Quidam enim 
principes," he continues in a passage of splendid con- 
fidence, "faciunt colligationes suas. Et audacter dici- 
mus, quod si omnes principes terreni essent hodie 
colligati contra nos et contra ecclesiam istam, dum 

1 " Et nescimus," he continues, " unde hoc habuerunt vel adin- 
venerunt, quia constat, quod Christiani subditi fuerunt monarchis 
ecclesie Romane et esse debent: nee habent hoc a lege veteri. vel 
nova, nee aliquo propheta, vel evangelio, vel apostolo. Unde hie 
dicimus, quod dicit apostolus : ' Et si quis evangelizaverit vobis aliud, 
quam evangelizamus, etiam angelus de celo, anathema sit.' Et nos 
volumus, quod, quicunque evangelizaverit aliud, anathema sit." 

2 P. 116: " In nomine Domini constituimus sic eum hodie, non in 
hodie eternitatis, de quo dictum est filio : 'Ego hodie genui te,' sed in 
hodie temporis. Sicut enim pater dedit filio potestatem non in tempore, 
sed in eternitate, sic Christus homini et Christi vicario dedit potestatem 
in tempore, ut ipse habeat jus constituendi imperatorem et imperium 
transferendi. Et attendant hie Germani, quia sicut translatum est 
imperium ab aliis in ipsos, sic Christi vicarius successor Petri habet 
potestatem transferendi imperium a Germanis in alios quoscumque, si 
vellet, et hoc sine juris injuria.... Unde si subveniat justa et legitima 
causa, juste posset transferre et justa faceret, si eos privaret. Tamen 
hie fuit semper patientia istius ecclesie, que magis voluit cum eis de 
benignitate agere, quam de rigore, ut non privaret eos, licet juste privare 
potuisset." 



Ill] THE PROBLEM OF THE EMPIRE 335 

tamen nos haberemus veritatem et staremus pro veri- 
tate, non appretiaremus eos unam festucam ; et sine 
dubio, si veritatem et justitiam non haberemus, bene 
timeremus, sed alias omnes confunderemus et Veritas 
confunderet eos." After this he again returns to the duty 
of all men to obey Albert — " Iste est rex praecellens super 
omnes reges et nullus est ab eo exemptus " — and ends 
with promises of support. — " Igitur faciat bene rex, quia 
si bene defendat et recuperet jura sua et jura regni et 
imperii, audacter dicimus, quod nos defendemus plus jura 
sua quam nostra, et hoc contra quemcumque de mundo, 
et per nos firmabitur sententia sua et non fiectetur." 

That this is all directed against the king of France 
needs no demonstration, and the significance of thus 
finding Boniface maintaining the subjection of all kings 
to the Emperor, and bidding the Emperor defend and 
recover the rights of the Empire, cannot be over-esti- 
mated. Hitherto the Papal theory had been ever 
advancing its claims at the expense of the Empire. 
Hitherto, we may say, the whole Papal armoury had 
been forged as weapons against the Empire. But here, 
on the contrary, we have a weapon, made expressly to 
fit the struggle with a king, and one whose whole force 
must depend upon alliance between the Empire and 
Papacy. Nor was Boniface unique among his contem- 
poraries in adopting this line of argument. The author 
of the anonymous treatise on the Bull Clericis Laicos 
insists on the necessity of unity, and cannot believe 
that Christ, when about to leave this earth, would have 
wished His Church to have more than one head, namely 
S. Peter and his successors 1 . So also Rome could not 
1 Vide p. 475. 



336 THE PROBLEM OF THE EMPIRE [CH. 

have two kings. "Item," he continues in a passage 
well worth quoting in full, " universi reges et principes 
fatentur se imperatori Romano subesse quantum ad 
corporalia, quod quidem jus superioritatis in temporali- 
bus quicumque attribuunt ei de jure, cum ipse dicatur 
mundi clominus...et omnia dicantur esse ipsius...et 
tunc non poterunt negare, quin etiam subsunt papae 
in temporalibus mediate, cum imperium teneatur ab 
eo et ipse confirmat ejus electionem et coronam imperii 
concedit; etiam ipse imperator jurat sibi ficlelitatem. . . . 
Non obstat si dicatur quod imperium a deo processit... 
quia hoc non tollit quin imperium teneatur a papa, 
cum ipse sit vicarius, ut supra probatum est. Si enim 
noluerint confiteri se subesse imperatori, necessarie 
habent confiteri se subesse pontifici Romano in tem- 
poralibus." 

Let us note this passage well. To begin with, it is 
very probably of earlier date than the speech of Boniface, 
that is to say, earlier than the actual accommodation 
between the Pope and King Albert 1 . But be that so, 
or not, the passage must be taken along with Boniface's 
words. It shows us that the Pope's insistence on the sub- 
jection of the King of France to the Roman Emperor was 
something more than an angry and random flight of 



1 Scliolz thinks the date may be February-July 1297, but that 
a later date, i.e. 1302, is quite possible. Vide op. cit. pp. 169-70. In 
any case, then, it is earlier than the speech. The author, he thinks, 
may be Henry of Cremona. Henry of Cremona was a canonist, and 
in this connection it may be noted that he attacks the Ghibellines 
bitterly in his own treatise (vide p. 460). If he is also the author of 
this anonymous treatise, his argument becomes yet more noteworthy 
in the mouth of a Guelph, writing before the recognition of Albert by 
Boniface. 



Ill] THE PROBLEM OF THE EMPIRE 337 

rhetoric, such as Boniface was not slow to shower on 
his enemies. 

Secondly, we see that neither Boniface nor the 
author of this treatise find any contradiction to their 
plea for unity in the government of the Church, when 
they maintain the subjection of all kings to the Roman 
Emperor. Such unity is not inconsistent with the 
existence of two powers, both "a Deo." Boniface 
himself on one occasion, in another public speech, 
made a point of affirming his belief in the divine 
ordination of the two powers — how, he asked, could a 
lawyer of forty years' standing do otherwise ? " Quad- 
raginta anni sunt quod nos sumus experti in jure, 
et scimus quod duae sunt potestates ordinatae a 
Deo 1 ." Boniface was speaking the literal truth, but 
he was also begging the question. The avowal by 
Boniface and the Papalists that they do not deny the 
existence of " two powers ordained by God " is impor- 
tant, as an illustration of the fact that the Papalists 
did not follow up the idea of the human, sinful or 
diabolical origin of the Regna and Imperium, which 
the Investiture struggle had suggested. But the real 
point at issue between the Papalist and his opponent 
was not so much — Are there two powers ordained by 
God ? as — What are the relations between these two 
powers ? Are they equal ? And are they " distinct and 
separate " ? 

The French writers pointed to declarations of the 
Popes 2 themselves, as conclusive proof that the two 

1 In Dupuy, p. 77. 

' 2 Decretal, iv. 17. 13 and n. 1. 13. Cf. also Extrav. Commun. v. 
7. 2 — -the decretal of Clement V, which, while not condemning the 
w. 22 



338 THE PROBLEM OF THE EMPIRE [CH. 

powers are distinct — above all to the decretals Per 
venerabilem and Novit Me of Innocent III. And, of 
course, so far as the Popes claimed to interfere in tem- 
poral matters "ratione peccati," they did indirectly 
recognise the normal independence of the temporal 
power in its own sphere 1 . To explain away these de- 
cretals was no easy task ; they stood in black and white 
in the Canon Law. None the less the Papalists con- 
tinued to deny the separation of the two powers, unless 
it were recognised as being merely de facto' 2 . Rightly 

Bull TJnam Sanctam, declares that in no way "per illam rex, reg- 
num et regnicolae praelibati amplius ecclesiae sint subjecti Romanae 
quam antea existebant etc." The decretal Causam (iv. 17. 7) is 
appealed to in support of English independence. Vide below, p. 354, 
note 1. 

1 This comes out very clearly in the decretal Novit Me: " Non 
ergo putet aliquis quod jurisdictionem aut potestatem illustris regis 
Francorum perturbare aut minuere intendamus, quum ipse jurisdic- 
tionem et potestatem nostram nee velit nee debeat etiam impedire, 
quumque jurisdictionem propriam non sufficiamusexplere, cur alienam 
usurpare velimus?...Non enim intendimus judicare de feudo, cujus ad 
ipsum spectat judicium, nisi forte jure communi per speciale privi- 
legium vel contrariam consuetudinem aliquid sit detractum, sed 
decernere de peccato, cujus ad nos pertinet sine dubitatione censura 
quam in quemlibet exercere possumus et debemus....Quum enim non 
humanae constitution!, sed divinae legi potius innitamur, quia potestas 
nostra non est ex homine, sed ex Deo: nullus qui sit sanae mentis 
ignorat, quin ad officium nostrum spectet de quocunque mortali peccato 
compere quemlibet Christianum, et, si correctionem contempserit, 
ipsum per districtionem ecclesiasticam coercere." So, in the speech in 
which Boniface affirms his belief in the two "powers" (vide above), he 
continues — "Dicimus, quod in nullo volumus usurpare jurisdictionem 
regis... Non potest negare rex seu quicunque alter fidelis, quin sit 
nobis subjectus ratione peccati." 

2 Innocent IV in his Commentary on the Decretals says of the 
famous words in the decretal " Per venerabilem " — "Et cum dominus 
rex superiorem in temporalibus minime recognoscat " — " De facto, nam 
de jure subest imperatori Romano, ut quidam dicunt. Nos contra : 



Ill] THE PROBLEM OF THE EMPIRE 339 

the temporal power is only separated from the spiritual 
by delegation from the Pope. Originally there was no 
separation at all. Thus, Henry of Cremona 3 can allow 
that the Imperium is " a Deo " no less than the Sacer- 
dotium, but maintains the two jurisdictions to be from 
God " non divisim sed conjunctim." The Pope, as vicar of 
Christ, the Priest and King, in the well-worn phrase has 
both swords, the spiritual and temporal. The spiritual 
sword is wielded directly by the spiritual power, the 
temporal power is wielded for the Church by "kings 
and knights' 2 ," but " ad nutum et patientiam sacerdotis." 
That is to say, the kings and knights are delegates of 



immo papae." Cf. Augustinus Triumphus, De duplici potestate, 
p. 550 : ' ' Secundum primariam institucionem et auctoritatein uni- 
versalem utraque potestas in Romano pontifice residet et ab ipso, 
tamquam ab uno capite universalis ecclesie, in clericos et laicos debet 
derivari. Et per consequens omnes praedictae (i.e. all secular or 
spiritual powers) potestates casu interveniente per Romanum pontificem 
possunt privari, quia sicut ab ipso potestas spiritualis et temporalis 
omnibus confertur, sic ab eis per eum auferri potest. Si vero aliqui 
contrarium faciunt vel contrarium dicunt, contra facientes de facto 
faciunt, non de jure, et contrarium dicentes in favorem principum et 
regum hujus seculi dicunt pocius quam secundum veritatem." 

1 A r ide pp. 446-7 : ' ' Sed contra hec supradicta multa opponuntur. 
Et primo, quia imperium a deo processit sicut et sacerdotium, ut in 
Authentic. ' Quomodo oporteat episcopos.'...Et ego respondeo; quod 
est verum et hoc supra in principio probaturn est, quod a deo proces- 
serunt iste due jurisdictiones, sed non divisim, sed conjunctim." 

2 Vide Bull Unam Sanctam: "In hac ejusque potestate duos esse 
gladios, spiritualem videlicet et temporalem, evangelicis dictis in- 
struimur. ...Uterque ergo est in potestate ecclesiae, spiritualis scilicet 
gladius et materialis. Sed is quidem pro ecclesia, ille vero ab ecclesia 
exercendus. Ille sacerdotis, is manu regum et militum, sed ad nutum 
et patientiam sacerdotis. Oportet autem gladium esse sub gladio et 
temporalem auctoritatem spirituali subjici potestati....Nam, veritate 
testante, spiritualis potestas terrenam potestatem instituere habet, et 
judicare, si bona non fuerit." 

22—2 



340 THE PROBLEM OF THE EMPIRE [CH. 

the Sacerdotium — "its organs and instruments 1 ." As 
properly the two powers belong "conjunctim " to the 
Sacerdotium, so, when they are divided by the dele- 
gation of the one power to temporal rulers, the powers, 
thus separated, are not equal and coordinate. The tem- 
poral ruler must be dependent on the spiritual, who 
delegates the temporal sword to be used on his behalf 
and at his command. The Pope is set above all kings 
and kingdoms " ad evellendum, destruendum, disperden- 
dum, dissipandum, aedificandum atque plantandum 2 ." 

Albert was willing to accept the humble position, 
which the Papal theory offered him. His power was 
above that of all other temporal rulers and was of divine 
ordination, but mediately through the Pope, on whom 
his possession of the Empire depended. Now if he, the 
supreme and universal temporal ruler, recognised none 
the less that he was subject to, and dependent on, the 
Pope, it was an obvious conclusion that inferior temporal 
powers must be at least equally subject. Thus the 
Roman Empire became a stalking-horse behind which 
the Papacy could attack French claims to independence. 



1 Vide Augustinus Triumphus, De duplici potestate, p. 550: 
' ' Utramque ergo potestatem spiritualem et temporalem residere con- 
sequitur in summo pontifice, unde Christus, cujus personam repre- 
sentat, dicit...' Data est michi omnis potestas in celo et in terra' ; sed 
potestas spiritualis residet in ipso, quantum ad auctoritatem et ad 
execucionem, sed temporalis, quantum ad auctoritatem, non autem 
quantum ad immediatam execucionem, quia committit execucionem 
talis potestatis secularis regibus et principibus, qui debent esse organa 
et instrumenta ejus in parendo mandatis ipsius in omnibus et in 
exequendo potestatem temporalem ad requisitionem ejus; et quan- 
tum ad talem execucionem non est inconveniens, quod papa aliqua 
recognoscat a regibus et secularibus." 

2 Bull Ausculta Fili (in Dupuy, p. 48). 



Ill] THE PROBLEM OF THE EMPIRE 341 

And if the inferior king refused to recognise a supreme 
universal Emperor, there was still no escape. The Papal 
claims came out from the cover of the Empire. The 
kings, as all other Christians, were subject immediately 
to the Pope, the one head, temporally and spiritually, 
"of the body of the Church or congregation of the 
faithful." Let us now turn from the Papalists to their 
French adversaries. 

We have already remarked upon the attempt made 
by Charles of Anjou to procure the nomination by 
Pope Gregory X of his nephew, Philip III of France, 
to the Empire. This attempt was not an isolated 
ambitious scheme of Charles of Anjou, but must be 
taken in connection with the political problems, which 
the defeated Hohenstaufen had bequeathed to Europe. 
Those problems were still to be solved. Consequently, 
there is nothing surprising in the fact that the attempt 
to procure a French Emperor should reappear under 
Philip the Fair. There is, indeed, this important dif- 
ference. Charles of Anjou wished Gregory X to exercise 
the right of effecting a new " translatio imperii," which 
right, we have seen, the Papacy actually claimed. Philip 
the Fair attempted to work directly upon the electors, 
in spite of the fact that the Papacy was already in its 
French exile. Again, Charles of Anjou wished the 
reigning king of France to become Emperor; Philip 
the Fair tried to procure the election of his brother, 
Charles of Valois, and at the time had little reason 
to think that the Valois would so soon succeed to the 
French crown. These differences, however, noteworthy 
as they are, need not detain us. We have only to 
notice the definite existence of these French pretentions 



342 THE PROBLEM OF THE EMPIRE [CH. 

to the Empire, and to see that they were not the effect 
of a spasmodic policy of ambition. They were claims 
based upon a supposed right to the Empire. The French 
kings claimed to represent the royal line of Charlemagne; 
the " French " were the descendants of his Franks. We 
see, then, that France, as well as the Papacy, has " Im- 
perial" claims 1 , and we need only point to Dubois to 
show that the French political literature has its aggres- 
sive, as well as its defensive, side. Dubois repeats the 
same projects time after time, and in all of them the 
central point is the domination of Europe by France, 
and the consequent acquisition of the Empire by the 
French king 2 . Whether Dubois was really in the king's 
confidence has been doubted ; but whether he was, or 
not, his works are equally valuable as illustrating the 
aggressive side of French policy. 

It is however the defensive, not the aggressive, side 
of the French position that chiefly concerns us. " Vult 

1 Bodin in the sixteenth century still makes these claims. 

2 The best known of the works of Dubois is the ' ' De Becuperatione, ' ' 
published by Langlois in Textes pour servir a V etude. ..de Vhistoire. 
But it is a great pity that the earlier ' ' De Abbreviatione ' ' has not as 
yet been printed, though there is a long abstract of it (in French) in 
Memoires de VInstitut de France (Academie des Inscriptions et Belles 
Lettres, vol. xvm. Part 2) by de Wailly. It would be very interesting 
to have Dubois' schemes in their earliest form — for the " De Abbrevia- 
tione" dates from 1300. For our purpose the little tract printed by 
Boutaric, in Notices et Extraits des Manuscrits, vol. xx. Part 2, 
pp. 186-9, is very important. Two little pieces ascribed to Dubois, 
the " Deliberatio " (in Dupuy, p. 44) and the " Supplicatio " (Ibid. 
p. 215), will also illustrate the defensive side of the French political 
literature. But that side we are about to consider at length, as it 
appears in more important treatises, two of which have also been 
ascribed by some to Dubois himself — the Quaestio de Potestate Papae 
and the Dialog us inter Clericum et Militem. To me it seems that in both 
hese cases the style is utterly unlike the very distinctive style of Dubois. 



Ill] THE PKOBLEM OF THE EMPIEE 343 

sibi mundi monarchiam vendicare ? " asks a note, evi- 
dently by a Frenchman, appended to the manuscript, 
from which the anonymous treatise on the Bull Clericis 
Laicos has been printed 1 . The Empire of the world 2 
— that is what the Papal claims amounted to. The 
claim might be made by the Pope as Pope, or by the Pope 
as " verus imperator," or by the Pope on behalf of the 
temporal Emperor, as a power set up by, and dependent 
on, the Papacy, and who, in the particular circumstances 
of the time, had been willing to accept that position. 
The first object of the French politician, whether 
practical or theoretical, must be to deny the subjection 
of France to any such " mundi monarchia " — whether 
the Pope's or the Emperor's 3 . 

The Papal claims to a supremacy, even " in tempo- 
ralibus," over the French kingdom, were most easily 
met when based on the Donation of Constantine. 
John of Paris discusses the Donation at length, and 
maintains that neither the Donation nor the " translatio 
imperii " can give the Pope any ground for claiming 

1 The Note is printed by Scholz at the end of the treatise ; op. cit., 
Anhang, p. 484. 

2 Vide the following passage from the anonymous treatise itself : 
" Christus...mundum relicturus, ad instar prudentis patris familias, 
qui peregre profecturus ad partes longinquas procuratorem seu vicarium 
loco sui dimittit, voluit dimittere loco sui vicarium, scilicet beatum 
Petrum et quemlibet ejus successorem, qui in omnibus, quae optima 
erant ad universale mundi regimen, haberet plenitudinem potestatis, 
alias non reputaretur pater familias" (p. 474). 

3 As illustrating the defensive side of the French position we shall 
consider above all the work of John of Paris, De Potestate Regia et 
Papali. Besides this we shall refer to three anonymous works — the 
Quaestio de Potestate Papae, the Quaestio in Utramque Partem, and the 
Dialogus inter Militem et Clericum. 



344 THE PROBLEM OF THE EMPIRE [CB. 

a supremacy over the king of France 1 . The Donation 
only gave a " certain provinciam " — Italy and some 
other lands — but not France; it did not include the 
Empire, for that Constantine transferred to New 
Rome and the Greeks. So the " translatio," whether 
it was merely a nominal transference, which left the 
Empire " secundum rem " with the Greeks, or whether 
it was rather a division of the Empire, cannot give the 
Pope any ground to claim supremacy over France, 
since the fact that there still remained Emperors 2 at 
Constantinople after the " translatio " proves that it did 
not include the whole Empire 3 ; and later he shows 

1 Vide the whole of chap. xxn. pp. 139-41, of his "De Potestate 
Regia et Papali" (in Goldast, Monarchia S. Romani Imperii, vol. n. 
pp. 108-47) ; and cf . chap. xvi. p. 130. It is worthy of note that 
earlier in the treatise, chap. x. p. 120, John of Paris remarks on a 
difficulty, which we have seen the Papalists had actually to face, 
namely that the acceptance of temporal power from a human donation 
was out of harmony with the Papal claim to both swords, as repre- 
sentative of Christ's kingly and priestly power. None the less, he 
points out, the Canon Law, in including the Donation, clearly regards 
it as a "donatio,'' not as a "redditio" — "Mirumetiam videtur, quod 
Constantinus Imperator dedisse dicitur imperium Italicum ecclesiae 
et totam jurisdictionem temporalem, et quod ecclesia illud tamquam 
datum, si hoc habuit, de jure recepit. Tunc enim non fuisset facta 
beato Silvestro donatio : sed redditio ejus quod suum erat, cujus 
contrarium sentit ecclesia distinct. 96 Constantinus." 

2 Cf. on the other hand Radulf de Colonna, "De Transl. Imp." 
(in Goldast, op. cit., vol. n.), chap. x. p. 95: "Nee est imperium jam 
modo apud Graecos, licet largo vocabulo imperator vocatur etc." 

3 He has already, but more briefly, discussed the Donation and 
"translatio " in chap. xvi. (p. 130). As to the Pope having translated 
the Empire, he refers us back to his argument on the supposed 
deposition by Pope Zachary of Childeric. There he argues that " non 
oportet ex talibus factis singularibus, quae variis causis fieri possunt, 
argumenta juris sumere." He points out, in a most interesting line 
of argument, certain exceptional cases in which the Emperors have 
interfered, often at the request of the Church, in purely spiritual or 



Ill] THE PROBLEM OF THE EMPIRE 345 

that the French were never subject to the Empire. 
But the Donation can be proved invalid for reasons 
given by the Gloss, which maintains the illegality of 
acts of the Emperor tending to diminish his Empire 
or to bind his successors. Then John of Paris goes on 
to argue that, even supposing the Donation were valid 
and had included the whole Empire, even so the Pope 
would have no supremacy over France. The Gallici 
were, indeed, subject to the Empire in the time of 
Augustus, but the Franci, who were related to the 
Trojans, never. They were always very hostile to the 
Roman Empire, and, refusing to pay tribute, were 
expelled from their homes in Pannonia. Thence they 
came to the banks of the Rhine, and the Emperor 
Valentinian, being unable to defeat them, named them 
Franci, "id est feroces." They conquered all Germany 
and Gaul as far as the Pyrenees — " Galliam habitantes, 



ecclesiastical matters, and then turns to his Papalist opponents and 
asks them if they wish to draw a general conclusion from these single 
facts — "Ex quo posset modo consimili sumi argumentum, quod ad 
imperatorem pertineb primatum ecclesiae transferre et de ecclesiis 
ordinare....Numquid ergo propter hoc ad principem pertinet interesse 
consiliis episcoporum et dissensiones et causas eorum modo consimili 
determinare, an non?...Numquid dicimus propter talia, quod ecclesia 
Romana habeat ab imperatoribus primatum ecclesiarum?...Legitur 
etiam, quod tempore Henrici imperatoris Romani juraverunt non se 
papain electuros sine imperatoris assensu. Est igitur hoc observan- 
dum ? etc." (vide chap. xv. p. 129). So with the " translatio"— it was 
an exceptional fact. Then he offers other explanations — " non trans- 
tulit veritatem, sed nomen," "non fuit factum per solum papam," 
etc. " Quicquid autem de hoc factum sit," he concludes, "papa non 
ordinavit, nisi de eo quod sibi a Constantino collatum fuerat, quod 
concedo fieri posse de jure," — and the Donation, he has suggested, 
might have included the city, certain western provinces and the 
"signa imperialia," but not the Imperium. 



346 THE PROBLEM OF THE EMPIRE [CH. 

eamque Franciam nominantes, nullis Romanis nee aliis 
quibuscumque subjecti." 

But supposing the Franks had been subject to the 
Empire, the Pope does not gain thereby, since he is 
not Emperor 1 . Or supposing he were, the Franks would 
by now have prescribed their independence. It is said 
that prescription does not run against the Roman Em- 
pire — but why not ? There were " regna et imperia " 
before the Roman Empire — Babylon, Carthage and 
Greece, all of which were " aeque a Deo sicut imperium 
Romanorum." Never, indeed, has the world been less 
in peace than under the Roman Emperors. " Horribilia 
scelera per mundum currebant et dissensiones per- 
maximae." And if the Romans could prescribe against 
the Greeks, why should not others prescribe against 
the Roman Empire 2 ? If it be said that God willed 
all other Empires to cease in face of the Roman 
Empire, why should it not be said that now God wills 

1 p. 140 he says: "Et ideo volunt aliqui quod ratione hujus doni 
pontifex imperator est et dominus mundi, et quod potest reges con- 
stituere et destituere, sicut imperator et praecipue imperio vacante." 
But this is of course not allowed. "Ex dicta donatione, data quod 
valuerit et toto imperio facta fuerit, et dato quod Franci tunc fuissent 
imperio subjecti, quod non dicimus, adhuc papa nihil potest super 
regnum Franciae, cum non sit imperator..." (p. 141). 

2 Vide p. 141: " Mirum etiam si praescribi non possit contra 
imperium Romanorum, ut dicunt illi, cum ante regnum Romanorum 
fuerunt regna et imperia, scilicet Babyloniorum, quod incepit a Nino, 
tempore Abrahae : Carthaginense, tempore Judith : Macedonum sive 
Graecorum ab Alexandre tempore Machabaeorum : et quodlibet prae- 
dictum est aeque a Deo, sicut imperium Romanorum. Si igitur, non 
obstante quod Graeci habuerunt imperium a Deo, Romani praescribunt 
et praescripserunt contra Graecos et usurpare tentaverunt Graecos 
expellendo : quare non possunt alii homines praescribere contra im- 
perium Romanorum, etiam eorum dominium a se abjiciendo : praecipue 
cum eis se non subjecerunt voluntarie, sed violentia Romanorum?" 



Ill] THE PROBLEM OF THE EMPIRE 347 

the Roman Empire itself to cease ? Scripture is wit- 
ness to this 1 . 

Similarly the author of the Quaestio de Potestate 
Papae disposes of the Donation 2 . It only gave the 
Pope temporal jurisdiction over those who are " de 
Romano imperio." The Eastern Empire Constantine 
did not give ; and this proves that the Pope is not 
"dominus temporalis omnium Christianorum," since 
there were many Christians in Constantinople, both 
before and after the Donation — witness the founda- 
tion of many churches, and especially of S. Sophia, 
by Constantine. " Ergo ratione illius donationis non 
potest dici dominus temporalis omnium Christianorum, 
sed saltern illorum Christianorum, qui sunt de Romano 
imperio. Quantum ergo ad ilia regna, quae non sub- 
sunt Romano imperio, non est papa dominus superior 

1 p. 141 : "Si vero aliquis dicat quod Deo ordinante cessare debuit 
imperium aliorum, et crescere debuit imperium Romanorum; quare 
non sic potest dici de Romano imperio, quod cessare debeat Deo 
ordinante, ut illi qui ante Romanis qualitercumque fuerunt subjecti, 
amplius non debeant subjici, si discedere velint et possint? lino 
expressius videtur haberi in Scriptura, de imperio Romanorum, quod 
deficere voluerit, quam de alio.... Similiter in Danielem, ubi agitur de 
imagine quadriforma, percussa in pedibus, dicit glossa, quod regno 
Romanorum nihil fortius fuit et nihil in fine debilius aut fragilius 
erit." (These words come, of course, from Jerome's Comment, on 
Daniel.) Even an Imperialist like Engelbert of Admont, De ortu et 
fine, etc., chap. xx. p. 770, declines to believe those who "divinatores 
magis quam veri prophetae, adulando Romanis imperatoribus et 
imperio asserere ausi fuerint, quod Romanum imperium esset aeter- 
num ex eo, quod bene vel male, et nunc cum augmento, nunc vero 
cum diminutione et detrimento, longiori tempore duraverit quam alia 
regna mundi, ut Assyriorum et Medorum et Graecorum regnum." 
None the less, according to Engelbert, when it does cease, Antichrist 
will come — so that it is to last until the end of the world is imminent. 

2 "Quaestio de Pot. Papae," pp. 675-6 (in Dupuy, Histoire du 
different, etc., pp. 663-83). 



348 THE PROBLEM OF THE EMPIRE [CH. 

in temporalibus 1 ." The kingdom of France is not 
under the Empire and has never been within the 
memory of man. Therefore the Pope is not superior " in 
temporalibus," but only " in spiritualibus " — as regards 
the latter, in France as elsewhere. If, however, it be 
said that France is subject to the Empire de jure, 
whatever may be the case de facto, our author answers 
by insisting, like John of Paris, on prescription 2 . The 
French kings have been in peaceful possession of their 
kingdom, owning no temporal superior, but God — 
neither Pope nor Emperor — for much more than a 
hundred years. The kings of France have always been 
devoted and loyal to the Church, and it is not con- 
ceivable that S. Lewis, had he not rightly possessed 
the independence which he claimed, would have been 
canonised by the Church and proved his sanctity by so 
many miracles 3 . 

The author of the Quaestio in Utramque Partem 4, 

1 He continues : ' ' Regnum autem Franciae non subest Romano 
imperio: immo sunt certi limites, et fuerunt a tempore, ex quo non 
extat memoria, per quos regnum et imperium dividuntur. Ergo Papa 
in regno Franciae non est dominus nee superior in temporalibus, sed 
tantum in spiritualibus, sicut et ubique terrarum." 

2 "Si vero diceret aliquis, regem et regnum Franciae subesse in 
temporalibus Romano imperio de jure, et per consequens etiampapae, 
quamvis de facto fuerit aliud observatum ; contra hoc opponitur. 
Nam per praescriptionem legitimam jus acquiritur praescribenti. 
Nulla autem praescriptio magis est legitima, quantum ad cursum 
temporis quam centenaria; unde et ipsa currit contra Romanam 
ecclesiam. Reges autem Franciae longe plus quam a centum annis 
sunt in possessione pacifica, quod solum Deum superiorem habent in 
temporalibus, nullum alium recognoscentes superiorem in istis, nee 
imperatorem nee papam, etc." 

3 Cf. John of Paris, chap. xxn. p. 141, Quaestio in Utramque 
Partem, art. v. p. 102. 

4 "Quaestio in Utramque Partem," art. v. pp. 105-6 (in Goldast, 
Monorchia, vol. n. pp. 96-107). 



Ill] THE PROBLEM OF THE EMPIRE 349 

begins by referring to the decretal Fundamenta Ec- 
clesiae of Nicholas III 1 , which we have mentioned 
above, and which was mainly concerned, in its mention 
of the Donation, with justifying the Pope's temporal 
power over Rome itself: this he is willing to concede 2 . 
Turning, however, to the Donation itself, as it appears 
in Gratian's Decretum, he maintains its invalidity, as 
did John of Paris, on the authority of the "juristae 3 ." 

1 In quoting from the decretal he says "elicit Bonifacius Papa." 
The decretal appeared in the Sext, published by Boniface VIII in 1298. 

2 His argument is interesting and worth quoting as showing, in 
connection with the passage from John of Paris (quoted above, p. 344, 
note 1), that the French Apologists are quite aware of the weak point 
in the Donation of Constantine as the basis of papal claims. After 
quoting from the decretal, he continues: "Besponsio: si ex institu- 
tione divina papa dicit se esse dominum omnium temporalium, 
necessitas est dicere quod ex donatione Constantini sit monarcha 
utriusque potestatis in urbe. Si dicat quod hanc monarchiam Con- 
stantinus declaravit, et inde caute dictum est ' declararet ' (i.e. in the 
decretal, vide above, p. 329, n. 2), respondeo, quod ex constitutione divina 
monarchia totius mundi, quantum ad utramque potestatem, non fuit 
concessa Petro, nee successoribus ejus, sicut est superius declaratum. 
Sed ex dono Constantini posset ibi esse monarchia, sic intelligendo : 
quod cum papa spiritualem potestatem haberet in urbe et orbe, Con- 
stantinus ipse temporalem illam potestatem, quam habebat in urbe, 
transtulit in papam, ut in ipsa urbe utraque potestas (quae in duabus 
personis erat) esset in solo papa, sicut dicimus quod aliquis episcopus 
est dominus temporalis et spiritualis in sua civitate et sic est ibi 
monarcha utrumque obtinens principatum. Sic ergo concedimus quod 
papa habet monarchiam utriusque potestatis in urbe, non tamen in 
orbe." 

3 "De ista donatione Constantini dicunt juristae communiter, 
quod non valuit multiplici ratione." The reasons given are: (1) The 
Emperor being " semper Augustus " must increase (augere) the Empire, 
not diminish it. Further the Donation was excessive. (2) The 
Emperor is "administrator imperii et reipublicae, ut dicunt jura." 
(3) He cannot prejudice his successors. (4) If it were valid, others of 
his successors might imitate him, and thus in the end the Empire 
"detruncaretur." Further he adds — "Dico quod si dicta donatio 



350 THE PROBLEM OF THE EMPIRE [CH. 

Further he maintains that it could not apply to the 
Franks, who were not subject to the Empire ; or, sup- 
posing that they were subject — "quod non concedimus" 
— they would have prescribed their independence. On 
both of these points 1 he refers us to discussions earlier 
in the treatise, where the arguments used do not call 
for special notice after our examination of John of Paris 
and the Quaestio de Potestate Papae. 

It is evident that these Frenchmen were very con- 
cerned to prove France's absolute independence of 
the Empire. They had no thought of denying the 
universal spiritual supremacy of the Pope : what they 
denied was that there is any universal sovereign ' : in 
temporalibus " — be he Pope or be he Emperor. 

We have earlier in this chapter examined the entry 
into political thought of a material, which had come 
into existence long before the Roman world-monarchy 
was dreamed of; even the great Empire of Alexander 
had found no place in the political thought of his 
teacher. Aristotle knew of no State above the TroXw, 
and, consequently, to the medieval Aristotelians the 
State, as we have seen, was primarily the Civitas or 
Regnum, not the Imperium, though subsequently they 
might evolve a theory of the Imperium, as the finally 
most perfect community. Thus these Frenchmen could 
start from the Regnum as the " State " — John of Paris 
points out expressly that Aristotle holds the "genera- 
tionem regni esse naturalem in singulis civitatibus 
vel regionibus, non autem imperii vel monarchiae 2 ." 

valuerit, tamen ecclesia non fuit in possessione, nisi illius portionis 
terrae, quae dicitur patrimonium B. Petri." 

1 Vide art. v. ad init., p. 102. 2 Vide chap. m. p. 112. 



Ill] THE PROBLEM OF THE EMPIRE 351 

Accordingly, John of Paris having defined the 
Regnum as the "regimen multitudinis perfectae, ad 
commune bonum ordinatum ab uno 1 ," and the Sacer- 
dotium as the " spiritualis potestas ecclesiae, ministris 
ecclesiae a Christo collata, ad dispensandum fidelibus 
sacramenta 2 ," insists on the necessity of unity " in 
spiritualibus": this unity is found in the Pope 3 . But 
the unity, which in spiritual matters is ordained " ex 
divino statuto," is not equally necessary for the " fideles 
laici." By natural instinct men are inclined to diversity. 
A " suprema hierarchia in temporalibus " is derived 
neither from natural instinct nor from Divine Law. 
All the faithful form the one body of the catholic 
faith, outside of which there is no salvation, but there 
is no necessity for them to be united "in aliqua re- 
publica communi." Climate and natural conditions 
produce various forms of polity — " quod est virtuosum 
in una gente non est virtuosum in alia 4 ." A supreme 
temporal head is not necessary and is neither " de jure 
naturali " nor "de jure divino." Aristotle knew of no 

1 Vide chap. i. p. 109. 

2 Vide chap. n. p. 111. 3 Vide chap. in. pp. 111-2. 

4 p. 112. He continues: "Non est ergo sic necesse mundum regi 
per unum in temporalibus, sicut necesse est quod regatur per unum in 
spiritualibus, nee ita trahitur a jure naturali vel divino. Unde Philoso- 
phus in Politicis dicit etc . (vide above , p . 350) .... Augustinus etiam , quarto 
De Civitate Dei, dicit quod melius et magis pacifice regebatur respublica, 
cum uniuscuj usque, vel unumquodque regimen suae patriae terminis 
finiebatur. Et ibidem etiam dicit quod causa destructionis imperii 
Romani fuit ambitio propria dominandi vel provocans alienas injurias. 
Et sic non ita trahitur a jure naturali, quod in temporalibus sit unus 
monarcha, sicut in spiritualibus, nee huic obviat quod 7 quaest. 1 in 
apibus, ubi dicitur quod unus debet praeesse et non plures : quia ibi 
loquitur de re una, ubi non expedit plures ex indistincto dominari: 
sicut ostendit de Remo et Romulo, qui simul et ex indistincto domina- 
bantur: et icleo unus in alium fratricidium commisit." 



352 THE PROBLEM OF THE EMPIRE [CH. 

Imperium. Augustine shows that it was Rome's 
" ambitio propria dominandi " which was the cause 
of its ruin. And the famous Cap. In apibus, in 
Gratian's Decretum, which was so often appealed to 
as proving the necessity of unity, is explained as 
proving, not the necessity of unity in the whole 
world under its one universal temporal head, but 
the necessity of unity in each particular kingdom 1 . 

Our author's interpretation of the Cap. In apibus' 2 
is especially interesting. He is not arguing against 
unity, but he wishes to prove that the necessary unity 
" in temporalibus " is, not unity under one single 
universal head, but the unity of particular kingdoms. 
He has no intention of throwing doubt on the necessity 
of unity in the kingdom. On the contrary, by passing 
over the " imperator unus " and laying stress upon the 
"judex unius provinciae " and the two kings Romulus 
and Remus, he proves that one temporal head is a 
necessity in the kingdom. Only it proves nothing 
else — "ibi loquitur de re una." 

1 Cf. Quaestio de Pot. Papae, p. 678: " Quando ergo dicitur, 
ecclesiastica hierarchia exemplata est ad similitudinem hierarchiae 
caelestis, dico quod verum est in spiritualibus ; sed in nullo exemplatio 
ista trahenda ad temporalia vel corporalia : et concedo quod sicut in 
caelesti hierarchia est unus qui praeest omnibus spiritibus, ita in 
ecclesia est unus qui praeest omnibus animalus (sic), quantum ad ea, 
quae pertinent ad sp'iritum et spiritualitatem, sed non quantum ad 
ea, quae pertinent ad temporalitatem." Cf. Quaest. in Utramque 
Partem, p. 102. 

Which runs : "In apibus princeps unus est ; grues unam se- 
cuntur in ordine literato; imperator unus, judex unius provinciae. 
Roma condita duos fratres simul habere reges non potuit et fratricidio 
dedicatur. In Rebeccae utero Esau et Jacob bella gesserunt ; singuli 
ecclesiarum episcopi, singuli archiepiscopi, singuli archidiaconi, et 
omnis ordo ecclesiasticus suis rectoribus nititur." 



Ill] THE PROBLEM OF THE EMPIRE 353 

Sometimes we find arguments intending to prove 
that, even if the dependence of the Emperor on the 
Papacy be conceded, no analogy can be drawn from this 
with regard to France. The Quaestio de Potestate Papae 
offers a good example of this. Among the Papalist argu- 
ments, which the author brings forward to be refuted, 
it is urged that, since the Pope confirms the Emperor, 
therefore the Pope is the Emperor's temporal superior, 
and consequently the superior of any other Christian 1 . 
Later on this argument is answered as follows 2 : the 
Pope can no more claim superiority over the Emperor 
on the ground of confirmation and coronation, than 
can the Cardinal of Ostia over the Pope himself, on the 
ground of consecrating the Pope. This, however, is 
given on the authority of a " dicunt aliqui." Our 
author himself is quite willing to waive the question 
of the Pope's supremacy over the Emperor, and merely 
to argue that the conclusion from this premiss of a 

1 p. 666: "Item non confirmatur quis, nisi a superiori....Sed 
imperator confirmatur per papam in jurisdictione imperiali, quae est 
temporalis.... Ergo papa est superior imperatore, et etiam in temporali- 
bus; et consequenter quolibet alio Christiano." 

2 pp. 681-2: "Ubi dicitur de confirmatione imperatorum per 
papam, dicunt aliqui, quod sicut cardinalis Hostiensis consecrat 
papam, et tamen post consecrationem nullam jurisdictionem spiri- 
tualem habet super ipsum papam : ita papa confirmat imperatorem et 
etiam coronat ; et tamen post confirmationem et coronationem nullam 
jurisdictionem temporalem super ipsum habet. Ego dico, quod quic- 
quid sit de imperatore, nunquam tamen super regem Franciae habet 
papa, vel habuit, aliquam temporalem jurisdictionem. Et hoc, quia 
idem rex habet regnum, non per electionem, sed per successionem, 
nee unquam a papa recepit confirmationem vel coronationem. Unde 
patet quod non bene concluditur, quando dicitur : papa est superior in 
temporalibus imperatore; ergo quolibet Christiano. Quia aliquae 
causae sunt in imperatore, quae non inveniuntur in aliquibus regibus, 
sicut in regibus Franciae et Hispaniae etc." 

w. 23 



354 THE PROBLEM OF THE EMPIRE [CH. 

supremacy over all other Christians does not hold good. 
For the French crown goes by succession, not election, 
and the French king is neither confirmed nor crowned 
by the Pope. "Aliquae causae sunt in imperatore 
quare subditus sit papae in temporalibus, quae non 
inveniuntur in aliquibus regibus, sicut in regibus 
Franciae et Hispaniae, et fuit etiam aliquando in 
rege Angliae 1 ." In the same way our author, who 
denies that Childeric was deposed by the Pope, 
but rather " per barones 2 ," elsewhere agrees that 

1 "Videlicet," he goes on, "usque ad tempus regis Joannis, qui 
dicebatur Sine Terra, sicut apparet per inspectionem Chronicarum, 
unde etiam ilia decretalis, Extra. Qui filii sunt legit. Causam, 
quae facta fuit ante tempus illius Joannis regis Angliae, sicut notat 
Hostiensis in suo apparatu super eandem decretalem." The decretal 
(Decretal, iv. 17. 7) is of Alexander III (1159-81). The Pope dis- 
tinguishes in a case, committed by him to the bishops of London 
and Worcester, between the question which belongs to the king's 
court and the question which the bishops are to decide — "Nos 
attendentes, quod ad regem pertinet, non ad ecclesiam de talibus 
possessionibus judicare, ne -videamur juri et dignitati carissimi in 
Christo filio nostri Henrici regis, Anglorum principis, detrahere, qui, 
sicut accepimus, motus est et turbatus, quod de possessionibus scrip- 
simus, quum ipsarum judicium ad se asserit pertinere, volumus et 
...mandamus, quatenus regi possessionum judicium relinquentes, de 
causa principali, videlicet utrum mater praedicti R. de legitimo sit 
matrimonio nata, plenius cognoscatis etc." The decretal was con- 
tinually appealed to in order to prove that the Pope had no jurisdiction 
"in temporalibus" in England, as the more famous decretal Per 
Venerabilem (Decretal, iv. 17. 13) to prove the same for France. 
But it was generally allowed that since the time of King John the 
Pope was, even "in temporalibus," superior to the king of England. 
Cf . Quaest. in Utramque Partem, p. 98 (where the decretal is wrongly 
referred to as "Cap. Tantum enim" instead of "Causam"): "Si 
hoc dicitur de rege Angliae, qui Romanae ecclesiae feudalis est et 
censualis, multo magis de rege Franciae verum erit, qui in nullo 
praedictorum penitus est subjectus." 

2 Vide pp. 663 and 667. This explanation of the deposition of 
Childeric, as having been properly "per barones," not "per papam," 



Ill] THE PROBLEM OF THE EMPIRE 355 

Frederick II was deposed by Innocent IV. "Dico 
quod verum est, et de illo imperatore concedo quod 
papa est dominus temporalis, quoniam ille imperator 
fit per electionem et a papa conhrmationem recipit et 
coronam; sed nihil horum est in rege Franciae 1 ." 
So far these French authors have denied the sub- 
! jection of France to a temporal superior, whether Pope 
or Emperor, either by appealing to history, or by 
taking their stand on the Aristotelian Regnum, as the 
highest and most perfect community, or, lastly, by 
maintaining that there is no analogy between the 
Empire and France, so that, granting the dependence 
of the Empire on the Papacy, the dependence of France 
does not follow. The appeal to history was safe enough. 
All sides in the Middle Ages appealed to history — 
and the appeal, except in rare cases, was merely the 

the Pope having done no more than consent to the deposition, is 
general in the anti-papalist writers. Cf. John of Paris, chap. xv. 
p. 129, though he also argues that, even if the Pope did depose 
Childeric, no argument could be drawn from such isolated facts. 
Cf. also Quaest. in Utramque Partem, p. 106. Radulf de Colonna, 
De Translatione Imperii, chap. iv. p. 91, has an interesting discus- 
sion of the question. He is a Papalist, but he gives both versions. 
He does not actually declare for one or the other — but concludes : 
" Qualitercumque dicatur...salva semper in omnibus veritate, credo 
authoritatem papae in talibus omnibus negotiis praesupponi, ex eo 
quod omnis potestas ex eo in hoc dependet etc." In Marsiglio of 
Padua's version of Radulf s treatise (in the same volume of Goldast, 
Monarchia) the preference is of course given to the version, which 
would explain the Pope's supposed action as merely consent to the 
deposition, which was actually carried out by the Franks themselves 
— "nam talis depositio regis et alterius institutio propter rationabilem 
causam non ad episcopum tantummodo neque ad clericum aliquem aut 
clericorum collegium pertinet, sed ad universitatem civium inhabitan- 
tium regionem, vel nobilium vel ipsorum valentiorem multitudinem." 
Vide chap. vi. p. 150. 
1 Vide p. 678. 

23—2 



356 THE PROBLEM OF THE EMPIRE [CH. 

arbitrary selection of suitable facts and legends, often 
their obvious perversion. But the two other lines of 
argument were not altogether satisfactory. They might 
say that Aristotle knew of no Empire, or they might hand 
over the Empire to the Papacy— the truth is that they 
themselves could not altogether do without the Empire. 
The struggle between Boniface and France was the 
first great struggle between the Papacy and kingdoms, 
and it followed the previous struggles between the 
Papacy and the Empire. Now neither side opened 
this new struggle with a completely new set of argu- 
ments. It is true that, since the last struggle between 
the Popes and the Hohenstaufen, the new political 
theories, the basis of which was Aristotle's Politics, 
had entered medieval thought — and we have seen the 
importance of this for these Frenchmen. None the less 
the old struggles provided both parties in the new 
struggle with a whole armoury of arguments, either 
ready to hand, or to be adapted to the new political 
ideas. But, then, the old arguments, so far as they were 
favourable to the temporal power, were in the main 
arguments for the Emperor; therefore, if these French 
authors were going to adopt them, wholly or in part, 
this distinction between the Empire and other king- 
doms could hardly be maintained. If the Papalist 
arguments against the Empire were conceded, but held 
not applicable to France, why should Imperialist argu- 
ments be held valid, when favourable to France? 

We have seen Boniface maintain that he did not 
deny the existence of two powers ordained by God, and 
we have said that he was begging the question. Our 
authors were, of course, quite ready to maintain that the 



Ill] THE PROBLEM OF THE EMPIRE 357 

temporal power was " a Deo 1 ," but the struggle was not 
waged over that question. It might be denied occa- 
sionally in the course of argument, but in general it 
was a postulate accepted by both sides. The real 
question at issue was whether the temporal power was 
independent, that is to say, whether the two powers 
were " distinct and separate." " Quaestio est," begins 
the Quaestio in JJtramque Partem, " utrum pontificalis 
et imperialis, sive regalis, sint duae potestates dis- 
tinctae ad invicem. Et hoc est quaerere, utrum 
summus pontifex plenam jurisdictionem et ordinariam 
potestatem habet tarn in temporalibus, quam in spiritua- 
ls us, ita quod omnes principes temporales subsint ei 
quantum ad temporalia 2 ." Needless to say, the answer 
of these Frenchmen is that the two powers are distinct 
and separate, that the Pope has not "plenam juris- 
dictionem et ordinariam potestatem," alike in the 
temporal and spiritual spheres 3 . Now we have seen, 
in an earlier part of this essay, that the doctrine of the 

1 Vide e.g. John of Paris, chap. ix. pp. 117-118: "Respondetur 
secundum illud quod dicitur in Glossa ubi dicitur quod Christus quae- 
dam fecit ut imperator, quaedam vero alia ut sacerdos : non quia una 
eadem persona ilia duo exerceat vel gerere debeat : sed hoc ideo fecit 
ut ostenderet quod utraque potestas ab eo processit, ut scilicet Deus 
erat. Haec enim duo, imperium et sacerdotium, ab uno sunt." 

2 p. 106. 

3 Vide e.g. Quaest. de Pot. Papae, p. 681: "Nam et jurisdictio 
spiritualis, quam habet papa, et jurisdictio temporalis, quam habet 
rex in regno suo, omnino distinctae sunt, et disjunctae, ita quod, sicut 
rex non habet se intromittere de jurisdictione spirituali, quae est penes 
papam, ita nee papa habet se intromittere de jurisdictione temporali, 
quae residet penes regem. Unde non est inter istas duas jurisdic- 
tiones mutua dependentia, nisi quantum ad mutuam defensionem, 
quam sibi mutuo tenentur exhibere, cum necesse fuerit, prout ad unam- 
quamque pertinet, ut bene valeat regi respublica, tarn spiritualiter 
quam corporaliter." 



358 THE PROBLEM OF THE EMPIRE [CH. 

distinction and separation of the two powers became, 
since the Investiture struggle, essentially the standpoint 
of the Imperialists, as it had been, before the Investiture 
struggle, of the Papalists. It was a defensive doctrine, 
and it was the Imperialists who, since the Investiture 
struggle, were on the defensive. So were these French- 
men. Hence they had to fall in line with the defensive 
standpoint of the Imperialists in former struggles ; they 
could afford neither to ignore the Empire nor to hand 
it over to the Papacy. They needed the old arguments 
for the Emperor : their cause and the Emperor's was 
one — the cause of all temporal powers. Long ago the 
Emperor Frederick II had warned the kings of Europe 
that they must realise this 1 . That these Frenchmen in 
some degree, at any rate, realised it, in spite of the 
attitude which as yet we have seen them adopting 
towards the Empire, is sufficiently shown by the 
opening words of the Quaestio in Utramque Partem — 
the question to be decided is whether the Imperial or 
Royal power be distinct from the Papal. 

And so, in fact, we find John of Paris arguing quite 
as often for the Emperor as for the king of France 2 . 
We saw above that Henry of Cremona — who did not 
deny that the Empire was mediately from God — 
maintained, in discussing the Donation of Constantine, 
that "si imperatores aliquod jus habebant, propter 
peccata quae commiserant occidentes fideles in Christo, 
maxime summos pontifices, divinitus illo jure privati 

1 Vide Gierke, Political Theories of the Middle Ages, note 35, 
p. 118. 

2 Chaps, xi.-xx. especially, where he is stating and refuting the 
Papalist arguments, illustrate this. 



Ill] THE PROBLEM OF THE EMPIRE 359 

fuerunt." John of Paris considers this amongst the 
other arguments of Henry of Cremona, which he re- 
futes. Now John of Paris himself, as we have also 
seen, maintains that the world was never less in peace 
than under the Roman Empire — never more crimes 
and dissensions 1 . Hence, in answering Henry of 
Cremona, he cannot altogether deny that the Emperors 
were sinners. But he denies that they all were ; he 
denies that, because they were sinners, they could there- 
fore "de jure divino" be deprived of their Empire, for, 
on Augustine's authority, " regna et imperia vult Deus 
esse communia bonis et malis " ; he denies that the 
Pope can lay claim to the Empire, because of the sins 
of its Emperors; and finally he denies that the Empire 
is in any sense a delegation from the Pope — the 
Emperors possess it, not by a " privilege " granted 
" a clericis," of which he has never heard, " sed de jure 
eis debetur imperium populo seu exercitu faciente...et 
Deo inspirante, quia a Deo est 2 ." This is but one 



1 Vide chap. xxn. p. 141: "Tempore imperatorum nunquam fuit 
mundus in tanta pace, quanta fuit postea et ante : sed f rater fratrem 
et mater filium occidebat et converse-, et cetera horribilia scelera per 
mundum currebant et dissensiones permaximae etc." 

2 Vide chap. xx. p. 136: "Quod autem dicitur de peccato impera- 
torum, quod propter peccata eorum translatum est jus imperii ad 
papam, respondeo, hoc totum ridiculosum est. Primo quia, ut ostendit 
Augustinus 4 De Civitate, regna et imperia vult Deus esse communia 
bonis et malis, felicitatem non nisi bonis, et ita non est de jure divino, 
quod imperatores propter peccata sua jure imperii priventur. Secundo 
quia non omnes imperatores praedicta flagitia commiserunt, nee eorum 
peccata aliis obfuisse debuerunt : et praecipue quia in imperio non succe- 
dunt haeredes, sed ab exercitu vel populo rite eliguntur. Tertio etiam 
quia aliqui papae inventi sunt flagitiosi vel haeretici et juste depositi, 
nee tamen malitia eorum obfuit aliis successoribus eorum vere et 
debite electis. Quarto, quia dato quod imperator culpa sua privetur 



360 THE PROBLEM OF THE EMPIRE [CH. 

example of the way in which these Frenchmen were 
forced to make the Emperor's cause their own. 

We saw above that the author of the Quaestio 
de Potestate Papae was quite willing to concede the 
dependence of the Empire on the Papacy, maintaining 
that therefrom no argument for the dependence of 
France could be deduced. "Aliquae causae sunt in 
imperatore, quare subditus sit papae, quae non in- 
veniuntur in aliquibus regibus." Yet elsewhere we 
find him putting the Emperor and king on a level, 
as both alike independent, as both the " fundamentum 
reipublicae." The Pope, he says, may be the head of 
the "corpus ecclesiae," but the temporal power is the 
heart. The heart, on S. Isidore's authority, is " totius 
corporis fundamentum." Aristotle says that the heart 
is the " principium " of the veins, which carry blood, 
"sine quo non est vita," to the members, and further 
that "in generatione corporis animalis" the heart is 
created first, even before the head. And therefore the 
" dominus temporalis, sive rex in regno, sive imperator 
in imperio, recte dicitur fundamentum propter solidi- 
tatem et firmitatem, quae in ipso debet esse, sine qua 
respublica nullomodo potest esse stabilis, sicut nee 
aedificium sine fundamento 1 ." 

jure suo, tamen nihil juris ex culpa ejus papae in imperio accrescit... 
quia dominatio sacerdotibus interdicta est. Quinto quia falsum est 
quod in fine argumenti insinuatur, sc. quod imperatoribus debeatur ex 
privilegio. Hoc enim privilegium imperatoribus datum a clericis 
nusquam audivimus, sed de jure eis debebatur imperium populo seu 
exercitu facientc.et Deo inspirante, quia a Deo est...." 

1 Vide p. 670: " Spiritualiter vigere debet discretio et sapientia, 
qua Christi fideles, qui sunt membra ecclesiae, dirigantur ad opera 
salutis. Unde ad ipsum (i.e. the Pope), sicut ad caput, spectat om- 
nibus fidelibus dare sensum discretionis.... Spectat etiam ad ipsum dare 



Ill] THE PROBLEM OF THE EMPIRE 361 

The conception of Christendom as governed by 
"two powers" went back to the days of the old 
Christian Empire and was, therefore, in its origin, a 
theory of only two powers. The theory postulated the 
unity of Christendom; within that unity were two 
spheres, the spiritual and temporal, each with its 
supreme governing power. But we have seen that 
these Frenchmen, while maintaining the necessity of 
unity in the spiritual sphere, expressly denied a similar 
necessity in the temporal sphere. For them Christendom 
w r as spiritually one, with the Pope at its head; but, 
temporally, Christendom was divided between more 
than one power, each of which was supreme in its own 
E-egnum or Imperium. 

Of course the " regalis potestas " of Pope Gelasius 
had long since been applied to others than Emperors — 
never at any moment in the Middle Ages was the tem- 
poral unity of Christendom complete. The fact that 
Gelasius, though writing to the Emperor, had written 
" regalis," not " imperialis," made easy its applicability 
to more than one temporal power. None the less the 



fidelibus motum bonae operationis, per virtuosam operationem et bo- 
nam vitam, seipsum praebendo bormm exemplum fidelibus.... Nervi au- 
tem, ab ipso capite derivati, sunt diversi gradus et ordines ecclesiastici, 
quibus, secundum eorum diversa et distincta officia, membra ecclesiae 
suo capiti, scilicet Christo, et sibi invicem, quasi quibusdam con- 
nexivis compaginibus, colligantur. Unde in unitate fidei faciunt unum 
corpus. Cordis autem proprietas adaptatur rationabiliter illi, qui 
jurisdictionem temporalem exercet et est dominus temporalis. Dicit 
enim Isidorus quod cor est totius corporis fundamentum. Et Arist. in 
lib. 12 De Animalibus dicit, quod in corde est principium venarum, 
deferentium ad membra sanguinem, sine quo non est vita. Item dicit 
lib. 16 quod in generatione corporis animalis primo creatur cor, etiam 
antequam caput. Dominus autem temporalis etc." 



362 THE PROBLEM OF THE EMPIRE [CH. 

conception of the two powers was one that necessarily 
betrayed its origin. In the comparison, used here by 
the author of the Qaaestio de Potestate Papae, of the 
"corpus ecclesiae" or the "respublica" with the human 
body and its members, or in the time-honoured simile 
of the two luminaries, we see at once that the idea 
of the two powers was one that was most applicable 
to conditions both of spiritual and of temporal unity. 
If the Pope was the one head of the " corpus ecclesiae," 
should not its one heart have been the Emperor, not 
the king or Emperor ? If the sun stood always and only 
for the Pope, should not the moon have stood always 
and only for " imperator," not for "imperator vel rex 1 "? 

Then we must remember that the idea of a universal 
Empire was far from dead. In Engelbert we saw it 
enter the new political theories, which were based on 
Aristotle. The lawyers were still discussing whether 
the Emperor be " dominus mundi " ; many of the 
civilians at least were still deciding that de jure he 
is. Certainly the Gloss had said that he is. Yet for 
these authors the Gloss and the Civil Law were as 
prime authorities as Aristotle. In appealing to the 
Gloss they were appealing to an authority, to whom 
the "State" meant the " Imperium Romanum" as 
essential]y as it meant " Regnum " for the Aristotelian. 
In appealing to Civil Law they were appealing to 
a law claiming a universal validity : and it was still 
by no means certain that the Civil Law was not merely 
the Law of the Roman Emperor. 

The Disputatio inter Militem et Clericum can well 
illustrate how these French authors have need of, and 

1 Vide John of Paris, chap. xn. p. 121. 



Ill] THE PROBLEM OF THE EMPIRE 363 

yet must fear, both the Empire and Roman Law. The 
knight has argued 1 — " Sicut ego super certos agros 
habeo certum censum, sic imperator super orbem 
terrarum pro defensione reipublicae, cum opportunum 
fuerit, pro arbitrio voluntatis potest levare tributum." 
And the clergy are not exempt. The clerk asks if — 
"per reges tollendae sunt gratiae nobis per leges con- 
cessae et per beatorum principum privilegia sanctae 
ecclesiae concessa." The knight answers that all 
privileges granted to them must be understood as 
liable to be revoked or altered " secundum exigentiam 
temporis," if found to be harmful, or " pro ardua necessi- 
tate vel utilitate reipublicae." The clerk then remarks 
that the privileges, granted to the Church, were granted 
by Emperors, not by kings — "et ideo per bonos im- 
peratores, miles, nunc erit legum gubernacula 
moderari." The knight cannot conceal his anger. 
" Hoc responsum est blasphemiae," he answers. It 
argues either ignorance of history or malice. History 
shows that France " dignissima conditione imperii 
portio est, pari divisione ab eo discreta et aequali 
dignitate et auctoritate quingentis annis circiter in- 
signita; quiclquid ergo privilegii et dignitatis retinet 
imperii nomen in parte una, hoc regnum Franciae in 
alia." Just as the Emperor is supreme over the 
Empire, so, by this "fraternal division," the king of 
France is supreme over the kingdom 2 . As the 

1 Vide p. 17 (in Goldast, Monorchia, vol. n.). 

2 ' ' Cum enirn fraterna divisione Francorum regnuni a reliqua 
parte discessit imperii ; quidquid in parte decedente, et penitus ab 
imperio existente, Imperium ipsum quondam obtinuit, aut ibidem 
jure altitudinis aut potestatis exercuit, hoc principi seu Francorum 
regi in eadem plenitudine cessit. Et ideo sicut omnia, quae infra 



364 THE PROBLEM OF THE EMPIRE [CH. 

Emperor is above all things " infra terminos imperii," 
so is the king in his kingdom. And as the Emperor 
must give laws to his Empire, so the king of France 
can, within his own kingdom, accept or revoke the 
Emperor's laws, as he wills, or promulgate new ones 1 . 
And if the king cannot, who can — " quia ultra eum non 
est superior " ? Let the clerk check his tongue and 
recognise that the king is supreme over all laws, 
customs and privileges emanating from his royal power, 
and that he can add to or detract from them, as seems 
good to him, according to equity and reason or the 
advice of his counsellors. 

The task before the French publicists was thus ex- 
ceedingly difficult. Turning to John of Paris again, it 
need not now surprise us if we find him, in spite of the 
fact that he holds it better " plures pluribus regnis domi- 
nari quam unum toti mundo 2 ," here and there recognising 
the existence of a universal Empire and Emperor. 

Thus, on one occasion, he discusses a much-used 
Papalist argument, that since " in artibus ordinatis " 
the art, which leads to the principal and ultimate end, 
"commands" those arts which lead but to secondary 
ends, so the spiritual power should command the secular, 
since the end at which the secular power aims is only 
to direct men to the good life that is attainable " virtute 
naturae," while the end at which the spiritual power 

terminos imperii sunt, subjeeta esse noscuntur imperio, sic quae infra 
terminos regni, regno." 

1 "Et sicut imperator supra totum imperium suum habet leges 
condere, addere eis, aut demere, sic et rex Franciae, aut omnino leges 
imperatoris repellere, aut quamlibet placuerit permutare, aut illis a 
toto regno suo proscriptis et abolitis, novas si placuerit promulgare." 

2 Vide chap. xxn. p. 141. 



Ill] THE PROBLEM OF THE EMPIRE 365 

aims is supernatural, namely eternal life 1 . " Multi- 
pliciter deficit argumentum," says John of Paris. We 
need only notice the second of his arguments 2 . The 
" superior art " does not always command the inferior 
"per modum necessitatis, ut instituendo eum," but 
" per modum dirigentis,". just as a physician directs 
the druggist and judges of his work, but does not 
appoint him or depose him — that is the duty of the 
superior, "apud quern est totus ordo civitatis, ut rex 
vel dominus civitatis." And so, he adds, in the point 
in question, "totus mundus est quasi una civitas, in 
qua Deus est suprema potestas, quae papam et impera- 
torem instituit." 

Here we see the king is dominus of a Civitas, while 
the Emperor is one of the supreme powers in the one 
universal Civitas. Now John of Paris has, of course, no 
thought of suggesting that the king is dependent on 
the Emperor — he merely wishes to show that it is the 
Pope's duty to inform the Emperor, as the physician 
imforms the druggist, while it is God alone who sets 
up or deposes the Emperor. But it is remarkable that 
John of Paris is here admitting that the world is "quasi 

1 Vide chap. xn. p. 122. 

2 Chap. xvin. p. 132: "Quod vero dicitur 23 de ordine finium, 
respondeo: multipliciter deficit argumentum. Prime... Item plus 
deficit, quia ars ilia superior non semper imperat necessario inferiori, 
movendo per modum necessitatis, et instituendo earn, sed solum ei 
imperat per modum dirigentis, et sicut medicus pigmentarium in- 
format et judicat an bene conficiat pigmenta et debita, sed ipsum non 
instituit, nee destituit : sed est aliquis superior utrobique apud quern 
est totus ordo civitatis, ut rex vel dominus civitatis: et iste, si pigmen- 
tarius non conficiat pigmenta prout medico competit, habet ipsum 
destituere sicut et constituere. Et ita est in proposito. Totus mundus 
est etc." 



366 THE PROBLEM OF THE EMPIRE [CH. 

una civitas," with its two supreme " hierarchies," while 
before he has been at pains to deny it. It illustrates 
the great difficulty, which faced these Frenchmen, both 
of avoiding a universal conception of the Empire, when 
they united the cause of the Empire to their own, and 
of maintaining the unity of Christendom or the world, 
without temporal unity under one universal Empire. 
And, elsewhere, we actually find John of Paris confessing 
that " papa et imperator, universalem et ubique habent 
jurisdictionem, sed iste spiritualem, ille temporalem 1 ." 
He is considering the mutual duties of the Pope and 
Emperor to depose each other, in cases of incorrigible 
heresy and the like, and it is very significant to find 
him maintaining that it is the duty of the Emperor 
to depose, or rather to procure the deposition of, an 
heretical Pope. The Conciliar movement at the end 
of the century was to show how rooted in men's minds 
was the conception of the Emperor, as the temporal 
head of western Christendom, and how inevitably the 
union of western Christendom in common action brought 
that conception into practical importance. 

Even more significant perhaps is the reply of John 
of Paris to another Papalist argument. He states the 
argument that, as there is but one Church, one Christian 
people, one " corpus mysticum," so there should be one 
head alike "in spiritualibus " and "in temporalibus," 

1 Vide the whole of chap. xiv. The Pope cannot depose the 
Emperor or kings directly, but only indirectly by excommunicating 
those who obey them ; so the Emperor, ' ' si esset ' ' (there is no 
mention of kings in regard to the deposition of the Pope) can only 
depose the Pope indirectly — "posset sub hypotheca rerum vel poena 
corporum inhibere omnibus et singulis, ut nullus ei obediret vel 
serviret." 



Ill] THE PROBLEM OF THE EMPIRE 367 

on whom all the other " members " should depend 1 . In 
Engelbert we have seen this argument brought forward 
in favour of the Empire. John of Paris answers that 
it is true that there is but one Church, one Christian 
people, one "corpus mysticum," but the sole head is not 
Peter or Linus, but " proprie et maxime " Christ. The 
Pope may be called " head," in so far as he is " princi- 
palis inter ministros," just as the Roman Church is the 
head of all Churches. But he is not head " in tempora- 
libus," neither as regards their government nor disposi- 
tion — " sed quilibet rex est in hoc caput regni sui : et 
imperator monarcha, si fuerit, est caput mundi 2 ." 

The " si fuerit " here, and the " si esset " above, show 
that John of Paris fully realised the danger of admitting 
the Emperor to be " caput mundi," or to have " ubique 

1 Chap. xii. p. 122. 

2 Chap. xix. p. 134: "Quod autem dicitur 29 de vero capite, 
dici potest, quod una est ecclesia, unus populus Christianus, unum 
corpus mysticum: non quidem in Petro vel Lino, sed in Christo, qui 
solus proprie et maxime est caput ecclesiae, a quo distributa est 
utraque potestas dicta, quoad diversos gradus, secundum Psalm... et 
Ephes. 2...ubi dicit Ambrosius quod 'Christus est caput ecclesiae.' 
Potest nihilominus summus pontifex, quantum ad exteriorem mini- 
strorum exhibitionem, dici caput ecclesiae, quantum ipse est principalis 
inter ministros, a quo ut a principali Christi vicario in spiritualibus 
totus ordo ministrorum dependet ut ab hierarcha et architecto ; sicut 
Romana ecclesia indubitanter est caput omnium ecclesiarum. Non 
est autem caput quantum ad regimen in temporalibus seu disposi- 
tionem temporalium, sed quilibet rex est in hoc caput regni sui, et 
imperator monarcha, si fuerit, est caput mundi." Cf. Quaestio in 
Utramque Partem, p. 103: "Sed istud caput dicimus esse Christum, 
qui solus est proprie caput ecclesiae, a quo derivata est utraque 
potestas..,. Potest nihilominus papa dici caput ecclesiae, in quantum 
est principalis inter ministros ecclesiae.... Sicut etiam Romana 
ecclesia dicitur caput omnium ecclesiarum, non est autem caput 
quantum ad regimen temporalium, sed quilibet rex est caput regni, et 
imperator imperii . ' ' 



368 THE PROBLEM OF THE EMPIRE [CH. 

et universalem temporalem jurisdictionem." When 
John of Paris wrote, there was strictly no Imperator, 
but only a Rex Romanorum ; for neither Rudolf nor 
Adolf nor Albert ever received Imperial coronation. 
Dante himself looked on Frederick II as the last 
Emperor before Henry VII. Dante had his own 
reasons for this opinion, and they were not such as 
could have influenced John of Paris. The important 
point is that John of Paris has recognised in the 
Emperor a universal power, and that such recognition 
is in violent contrast to the main theme of the treatise — 
the " si merit " merely shows that John of Paris is well 
aware of this. 

So long, in fact, as Christendom was considered by 
the political thinker as one body, and the necessity for 
one spiritual head was conceded, it was impossible to 
carry out a consistent theory of the non-necessity of 
temporal unity. The theory of the State as a secular 
and non-universal institution was never achieved in the 
Middle Ages. The Middle Ages laid the foundations 
of the theory, but the theory was not achieved until, 
as a result of the Reformation, the spiritual unity of 
Christendom was no longer an axiom _of political 
thought. 

There was, however, a solution of many, if not all, 
of the difficulties with which these writers had to cope. 
That solution we have already considered in Bartolus 
himself. Bartolus, we saw, never gave up the de jure 
universal lordship of the Emperor, but he was willing 
to recognise de facto independence, wherever he found 
it, and to consider such de facto independent powers 
as Empires in themselves, as having the same power 



Ill] THE PROBLEM OF THE EMPIRE 369 

within their limited boundaries, as the Emperor had 
de jure in the world. Bartolus never applied this 
solution to the Regnum. But the phrase which became 
current by the middle of the fourteenth century — "Rex 
in regno suo est Imperator regni sui " — is nothing more 
than the solution, which he applied only to the Civitas, 
put in a short and epigrammatic form, and applied to 
the Regnum. The phrase, as applied to the king of 
France, would still leave open the question of the de 
jure universality of the Empire, but it would mean that 
all arguments adduced for the Emperor would apply 
" ipso facto " to the king of France, within his own 
kingdom, and that, in appealing to Roman Law 1 , the 
appeal would not be to the law of a foreign Emperor, 
but, within the boundaries of France, to its own and 
native Emperor. 

The solution and this phrase itself are not to be 
found in the literature, with which we have been 
concerned, with the exception of the Quaestio in 
Utramque Partem. The author of this treatise has. 
set out to prove that the two powers are distinct, 
and that the Pope has not the "dominium omnium 
temporalium." This he does by arguments of four 
kinds — physical (i.e. from Aristotle), theological, from 
the Canon Law, and from the Civil Law 2 — in other 
words, from all three of the fundamental materials, upon 
which medieval political theory was built. When he 
comes to the Civil Law, he quotes from the Novels 

1 This latter point is clearly brought out by Chenon, "Le Droit 
Romain a la Curia Regis de Philippe- Auguste a Philippe-le-Bel ' ' (in 
Melanges Fitting, vol. i.). 



24 



370 THE PKOBLEM OF THE EMPIRE [CH. 

and from the Gloss to prove the independence of the two 
powers, each in its own and proper sphere 1 . "Si dicas," 
he continues, " quod rationes et auctoritates praemissae 
videntur facere magis pro imperatore quam pro rege 
Franciae ; et si quaeras quare sint hie inductae ; re- 
spondeo, ad probandum jurisdictiones esse distinctas, 
quarum una est penes papam et judices ecciesiasticos 
et alia penes imperatorem et reges. Omnia enim 
quae pro imperatore faciunt, valent nihilominus pro 
rege Franciae, qui imperator est in regno suo." He 
then proceeds to give further reasons to prove that 
the king of France is not subject to the Pope "in tempo- 
ralibus," as well as to show that the king of France is 
"par imperatori quantum ad libertatem suae juris- 
dictionis 2 ." 

So far we have treated this work as unquestionably 
belonging to the period of the struggle between Philip 
and Boniface. That the evidence as a whole inclines 
decidedly to that conclusion is certain. It was pub- 
lished by Goldast as the work of Egidius Romanus. 
Nothing could be more improbable, since Egidius, in 
all his known works, is the most absolute of Papalists. 

1 p. 98. From the Novels he quotes the passage in Nov. vi. 
Praefat. (Quomodo oporteat episcopus). The glosses which he quotes 
are on the words "maxima" and "conferens." 

2 The following in particular is noteworthy. Having referred to 
the Decretal Per Venerabilem, where the Pope, he holds, said expressly 
that the king of France recognises no superior "in temporalibus," he 
adds — "Si dicas, prout dicit Glossa, verum est de facto, sed non de 
jure, quia de jure debet recognoscere imperatorem, ut patet....Re- 
spondeo: illud factum versum esse in consuetudinem, quae dat 
jurisdictionem....Quia ista etiam consuetudo est approbata et hactenus 
observata pacifice; nee a papa nee ab imperatore impugnata, imo 
juramentis et pactionibus foederata, et ex longissimis temporibus jam 
praescripta." 



Ill] THE PROBLEM OF THE EMPIRE 371 

Riezler 1 pointed out that the treatise is the Latin 
original of the French treatise by Raoul de Prelles, 
which Goldast printed in the same collection — his 
Monarchic, S. Romani Imperii' 2 . Raoul's work pro- 
fesses to be a translation, and Riezler suggested that he 
might be translating a work written by himself. At any 
rate, while admitting that the question remained open, 
he inclined to date this treatise between the years 
1364-80. Against this suggestion, however, are very 
weighty objections. It has been pointed out that the 
author speaks of the canonisation of S. Lewis as taking 
place "diebus nostris 3 ": S. Lewis was canonised in 1297. 
Again, he speaks of the Sext as newly published and 
not yet approved by the king of France 4 : the Sext 
was published in 1298. Consequently a modern au- 
thority, Professor Scholz 5 , who produces further evidence, 
is inclined to date the treatise in the beginning of 
the year 1302, and to see in it the model of the, in his 
opinion, later treatises — the De Potestate Regali et Sacer- 
dotali of John of Paris, and the Quaestio de Potestate 
Papae. One must disagree with great diffidence ; but 
we are bound to do so, when Prof. Scholz says that the 
contents of the treatise do not contradict his hypothesis. 
For it is just the very presence of this phrase, which 
seems to argue as decisively against the earlier, as the 
arguments brought forward by Dr Scholz do against 
the later, date. For if we turn to the later date, we 

1 Die literarischen Widersacher der Papste zur Zeit Ludwig des 
Baiers, pp. 139-41. 

2 Vol. i. pp. 39-57. 

3 p. 102. 4 p. 106. 

5 His work to which we have referred more than once — Die 
Publizistik zur Zeit Philipps des Schonen, etc. 

24—2 



372 THE PROBLEM OF THE EMPIRE [CH. 

find that the phrase, and the solution of so many 
difficulties which the phrase carries with it, is as con- 
spicuously present, as it is absent at the earlier date 1 . 
If the treatise is really the model of the treatise of John 
of Paris and of the Quaestio de Potestate Papae, how is 
it that neither of these have borrowed the phrase along 
with their other borrowings ? That question must 
surely be answered, before we can assign the earlier date 
to the work, granting, as we do, that otherwise the 
evidence is decisively for it. 

We are here only incidentally concerned with the 
date of this treatise. But the phrase, which has led 
us to doubt the early date given to the treatise by 
Dr Scholz, has concerned us so closely during a great 
part of this essay, that it will be a proper conclusion 
to this chapter, if we attempt some inquiry into its 
history. 

Bartolus himself, we have seen, is not concerned 
with the Regna, but strictly comparable with his 
" Civitas sibi princeps " is the phraseology of some 
older lawyers. In his master, Cino da Pistoia, we find 
it said that any lord (dominus) " qui non recognoscit 

1 The ' ' Somnium Viridarii, ' ' which is generally considered to be by 
Philip de Mezieres, though it used to be ascribed to Raoul de Prelles 
himself, excellently illustrates this. Vide Part n. chap. clx. p. 173 
(in Goldast, Monarchia): "Imperator fuit judex ordinarius sancti 
Petri: ergo est judex ordinarius papae, qui est Christi vicarius...Nam 
ad Caesarem tanquam ad suum superiorem appellavit: ergo beatus 
Petrus fuit subjectus eidem : per consequens et papa eadem ratione et 
regi Franciae, qui est imperator in regno suo, nee superiorem 
recognoscit in terris." Compare this with John of Paris, chap. xix. 
and we see the immense importance of this phrase. Cf. also chap. 
ccxciii. p. 189 and Part i. chap, xxxvi. p. 70 of the "Somnium 
Viridarii," which should be compared with the similar passage in 
the Disputatio inter Militem et Glericum. 



Ill] THE PROBLEM OF THE EMPIRE 373 

superiorem est princeps in terra sua de facto 1 ." Simi- 
larly, Andreas de Isernia, a writer on feudal law of a yet 
earlier generation, mentions the "princeps et rex in 
regno suo qui habet tantam vel majorem potestatem, 
quantam imperator in imperio 2 " ; and Durandus says 
that the king of France "princeps est in regno suo, 
utpote qui in illo in temporalibus superiorem non 
recognoscat 3 ." 

The lawyers to whom, in this connexion, we would 
most naturally turn, are the French civilians of the 
thirteenth and fourteenth centuries, those " Ultra- 
montani," whose influence both on the thought and 
method of the Italian schools is known to have been very 
great. Unfortunately their works are very difficult of 
access. A great part, even the greater part, has never 
been printed; in some cases, even where printed, the books 
are of the utmost rarity. We should naturally expect 
the French lawyers to be closely concerned with the 
relations of the king of France with the Empire ; if 
we could believe a sixteenth century Orleans pro- 
fessor, Johannes Igneus, it was they who consistently 

1 Vide Comment, on Codex (C. v. 17. 26), p. 317, and (C. iv. 6. 3), 
p. 186. 

2 Vide Super usibus feudorum (De vasal, decrepit, aetat., §Quidam 
vasal.) p. 41, § 3. Andreas lived, according to Savigny, circ. 1220- 
1316. 

3 Vide Speculum Juris, Lib. rv. Partic. 3, De Feudis, § Quoniam super 
hommagiis. Durandus lived, according to Savigny, 1237-96. It may 
be here worth while to refer to some words of Innocent IV., since 
later writers, when discussing the relations of the kings, and especially 
of the king of France, with the Empire, repeatedly appeal to them. 
Having maintained that none but the Pope and Emperor can create 
" tabeUiones," Innocent adds — Comment, on Decretals (n. 22. 15), 
p. 280 — "Credimus tamen quod alii reges qui habent supremam et 
merum imperium possent idem statuere de tabellionibus, si vellent." 



374 THE PROBLEM OF THE EMPIRE [CH. 

maintained their king to be de jure independent, in 
opposition to the Italian " Citramontane " lawyers, 
who would allow him at most but a grudging de facto 
independence. But slight as our available sources are, 
they are sufficient to throw considerable doubt, to say 
the least, on the thesis of Johannes Igneus. In his 
disputation, An Rex Franciae recognoscat Impera- 
torem 1 , which gained great celebrity, he maintains 
that the king of France has de jure no temporal 
superior, and that the French do not use the " leges 
imperiales" — "ut eas pro legibus habeant." On both 
of these points he insists that he is upholding the views 
of the Ultramontani, and above all of Petrus de Bella 
Pertica, against the views of the Citramontani, and 
especially of Bartolus and his followers 2 . He gives us 
several references to the commentaries of Jacobus de 
Ravanis, Petrus de Bella Pertica and Johannes Faber, 
in which he finds that they have maintained, in oppo- 
sition to the Glosses to the Civil and Canon Laws and 



1 In Commentaria Joannis Ignei . . .doctoris Aureliani in aliqtiot 
Constitutiones Principum, etc., pp. 61-79 verso. 

2 Vide p. 62 : " Cum me legente lecturam ordinariam vespertinam 
in famoso studio Aurelianensi plerumque occurrerit annotatio ilia 
scribentium legistarum et canonistarum, imperatorem universalem 
orbis dominum esse; quae nunquam visa est mihi vera in jure, 
praesertim in rege Franciae : curavi...multis additis conclusionibus 
de mente Petri de bellapertica doctoris Aurelianensis duas ex dictis 
suis in medium deducere et disputare, et pro viribus sustinere, quae 
omnino contradicunt dictis Bar. et omnium suorum sequacium idem 
tenentium cum eo quantum est respectu Christianissimi et invictissimi 
regis Franciae tenoris hujusmodi : 

Rex Franciae neminem in temporalibus de jure habet superiorem 
pro Petro contra Bartolum et sequaces. 

Galli legibus imperialibus non utuntur, ut eas pro legibus habeant, 
pro Pet. contra Bernardum, Bartolum et sequaces." 



Ill] THE PKOBLEM OF THE EMPIRE 375 

the " doctores citramontani," that the king of France 
does not recognise the Emperor de jure 1 . 

In the case of Jacobus de Ravanis, it is not possible 
to verify these references ; in the case of Petrus de Bella 
Pertica we can do so for the law " Cunctos Populos/' 
in the first title of the Code. Now so far is Petrus 
from maintaining the king of France's de jure inde- 
pendence of the Empire that, on the contrary, he 
can clearly conceive of no other than de facto inde- 
pendence 2 . And — what is still more perplexing — in 
another place Johannes Igneus expressly reprobates 
the view of Cino da Pistoia 3 , noticed earlier in this 

1 Vide p. 63 § 8: "Reperio quod nostri doctores Aurelianenses et 
Ultramontani ubique contra sententiam glossarum juris civilis et 
canonici et doctores citramontanos tenuerunt quod rex Franciae non 
recognoscat imperatorem de jure: tenuerunt et presertim Jac. de 
Raven. Petr. et Joan. Fab. in d. 1. 1. C. de summa trin. et fide cath. 
(C. i. 1. 1), per eosdem in § 1 Instit. de patria potest. (Inst. i. 9), per 
eosdem in prooe. Digestorum." 

2 Vide Repetitiones in aliquot... Cod. Leges (C. i. 1. 1), p. 8: "Ad 
legem istam opponitur duobus mediis. Lex ista dicit, Cunctos populos 
quos nostrae clementiae etc. Supponit ergo quod imperator non 
regit totum populum: contra, imperator mundi totius dominus est: 
ergo omnes populi reguntur imperio...Praeterea lex dicit, quod 
imperium de coelo processit, unde duo obtinent locum Dei in terris, 
imperator et papa. Papa locum Dei obtinet in spiritualibus et 
imperator in temporalibus etc. Deus est Dominus omnium, ergo sub 
imperio regi habent...Respondeo altero de duobus modis, uno modo 
sic ut legamus illam dictionem ' quos,' non restrictive, sed implicative, 
cunctos populos quos, scilicet cunctos populos : sic lex ipsa concordabit, 
quod mundi dominus est. Vel si velis, non legas implicative, sed 
restrictive, quos clementiae nostrae regit imperium, et tunc dicetis sic 
bene, verum est quod imperator de jure cunctorum est dominus... 
tamen de facto multi sunt populi, qui imperatorem non recognoscunt 
dominum, et ideo propter illos dixit, quos nostrae clementiae regit 
imperium, de facto." (Petrus died in 1308, according to Savigny.) 

3 Vide Johannes Igneus, op. cit. p. 62 verso, 5: "0 insulse 
dictum, cum reverentia tanti viri dixerim, qui choleram taxare non 



376 THE PEOBLEM OF THE EMPIRE [CH. 

essay 1 , that those who do not obey the Emperor are 
too " vile " to receive his laws, whereas we have seen 
that Cino has taken this view, and almost his wording 
of it, from Petrus himself in this very commentary 
on the law " Cunctos Populos." 

We cannot, as we have said, verify the references to 
Jacobus de Ravanis 2 , the founder of the Ultramontane 
school. His works have never been printed. But, 
fortunately, among the fragments which have appeared 
in a modern monograph 3 upon him, there is a passage 4 
which may incline us to doubt whether Jacobus, any 
more than Petrus, held the views ascribed to him by 
Johannes Igneus. He asks whether, supposing a "comes 
in regno Franciae " rises against the king and summons 
his " fideles " to his aid, they are bound to obey. No, 
he answers, because their oath does not extend to what 
is unlawful : he then proceeds to show that he who 
rises against his superior is acting unlawfully. " Com- 
mittit ille qui se elevat contra superiorem ut D. de 
cond. ind. 1. Si procurator, § Celsus 5 .... Et quod com- 
mittant in lege Julia majestatis, probatur quod rex 
princeps est quia non recognoscit superiorem. Dico 
hoc est in principem, non sicut ipsi dicunt quod rex 
princeps est, sed quia commit tatur in magistratum 
principis...quia Francia et Yspania semel fuerunt sub 

potuit." Johannes Igneus, it may be noted, treats his Italian oppo- 
nents with great respect — "Quid dicendum post tantos viros qui nihil 
in jure ignoraverunt ? " (Ibid. §6.) 

1 Vide above, pp. 41-3. 

2 He lived circ. 1210-96, according to Savigny. 

3 Tourtoulon, Les CEuvres de Jacques de Revigny. 

4 Pp. 48-9. 

5 D. xii. 6. 6. 



Ill] THE PROBLEM OF THE EMPIRE 377 

imperio, C. de off. pre Aff. 1. 2 l circa primum (sic) et 
imo sepe erant ut alias probavi...." 

Then as to Johannes Faber 2 . We can, in his case, 
verify two of the references of Johannes Igneus. In 
his commentary on Inst. I. 9, § 2 3 Faber merely refers 
us, for the question whether the " Francigenae " are 
subject to the Empire, to his commentary on the law 
" Cunctos Populos " in the Code. His commentary on 
this law contains a detailed discussion, which may be 
said, on the whole, to substantiate, though not unhesi- 
tatingly, the contention of Johannes Igneus. Having, 
according to the dialectical manner, stated arguments 
in favour of the de jure universality of the Empire, and 
opposed these arguments with other arguments against 
it, Johannes Faber concludes 4 : "restat ergo non sub- 
esse vel de jure vel de facto." Yet he must confess 
that once the Emperor was " fundatus de jure communi 
in omni orbe." Only no longer — " nee crederem impe- 
ratorem fundatum esse de jure communi extra metas 

1 C. i. 27. 2. 

2 He lived in the first half of the fourteenth century. 

3 Net § 1, as is said in Johannes Igneus' treatise. 

4 Vide his Breviarium Super Codice (C. i. 1. 1): "Restat ergo 
non subesse vel de jure vel de facto. Et quidquid sit, apparet in illis 
qui resistunt de facto magnanimitas, in imperatoribus impotentia vel 
pusillanimitas, qui tantis temporibus ad subjectionem eos reducere 
non valuerunt,nec jus suum recuperare. Fateor tamen quod impera- 
tor fundatus erat olim de jure communi in omni orbe. Hodie vero 
cum divisum sit imperium dei permissione...et alii reges et principes 
per populos constituti, ad quos pertinet constitutio per predicta, et 
per consequens destitutio...nec crederem imperatorem fundatum esse 
de jure communi extra metas suas infra quas ei obeditur, quamvis 
Hostiensis contra... qui dicit quod imperator est fundatus de jure 
communi et nullus rex alius vel baro, ymmo nee persona aliqua 
ecclesiastica, nisi papa vel episcopus, ut ibi plene notat. Sed tu 
potes etc." 



378 THE PROBLEM OF THE EMPIRE [CH. 

suas quas ei obeditur," though Hostiensis holds the 
contrary. "Tu potes dicere," he finally determines, 
''quod quilibet qui habet territorium limitatum ab 
antiquo sit fundatus de jure communi infra metas 
ejusdem, ad exercendum in qualibet parte jus quod 
in toto universal] exercet." 

Thus, with the possible exception of Johannes Faber, 
the difference between the hesitation of these Ultra- 
montane civilians 1 and the decided attitude of the 
French publicists, whom we have already examined, is 
very striking. John of Paris never doubted for a moment 
that the king of France is de jure independent of the 
Empire ; he only found himself in difficulties when he 
was compelled to adopt the Emperor as his ally. Doubt- 
less these French publicists were well versed in law, but 
they were much beside lawyers. And so soon as they 
left Aristotle for the Law Books, there was danger of an 
adversary retorting on them that the Law Books were 
the law of an Emperor, not of a king. It is then 
that the importance of this phrase, with which we are 

1 Johannes Igneus did not mention Guillelmus de Cunio, along- 
with the other TJltramontani, in the passage quoted above, though his 
influence was considerable. His works are very inaccessible. His 
Commentary on the Codex was printed at Lyons in 1513, but is of the 
utmost rarity —probably no copy exists in any public library in 
England : at least, I have not succeeded in finding one. Brandi, in 
his Notizie intorno a Guillelmus de Cunio, has printed a few fragments, 
among them a little ' ' Tractatus de diversis officiis digesti veteris ' ' 
(pp. 124-30). The following passage is for us important — vide p. 126 : 
"In regno Francie potest sic equiparari propositus parisiensis (i.e. to 
the Prefectus Urbis), quia sicut erat in Roma princeps, ita rex Francie 
in Francia. Et idem in aliis regibus qui de facto non recognoscunt 
superiorem." We note that he evidently conceives this independence 
as merely de facto. Earlier in the treatise he has said that "hodie" 
kings can be compared with the Prefecti Pretorio (p. 125). 



Ill] THE PROBLEM OF THE EMPIRE 379 

concerned, becomes evident. It was this phrase alone 
which could sever the connexion between the Empire 
and Imperial Law, and which could make arguments 
adduced for an Emperor applicable to other secular 
powers. At the same time it conveniently shelved the 
problem of de facto or de jure independence; grant 
that the Rex is "Imperator regni sui," and the question 
whether he be so de facto or de jure might be interest- 
ing, and even vital, to national pride, but was not of 
practical consequence. It was thus the lawyer's solution. 
It was the lawyer's final step in finding a solution of 
what Maitland called "the incongruously simple" theory 
of the Glossators, who, imposing a strict interpretation 
of their texts on the facts of the Middle Ages, had 
attempted to refuse sovereign independence to any but 
the one universal State, the Roman Empire. The 
Aristotelian had no need of such a solution, because 
he started from the Civitas as the State. The Aristo- 
telian might work upwards on a series of more and 
more perfect and self-sufficient communities ; but he 
started from the Civitas, as the perfect community, and 
was under no urgent necessity to go further. The 
lawyer, who started from the Imperium, was compelled 
to work downwards and to make room in his theories 
for more than one universal sovereign State. In 
making the Regnum or Civitas an Empire within its 
own boundaries, an Empire in miniature, the lawyer 
not only made possible the " Reception," but, in general, 
made possible the modern State. The part played by 
Roman Law at the Renaissance needs no explanation ; 
and that part was only possible when it became quite 
certain that " the Prince," in appealing to and making 



380 THE PROBLEM OF THE EMPIRE [CH. 

use of Roman Law, was not coming into contact with 
the law of the one universal Empire. 

We see the lawyers gradually feeling their way 
towards the solution which this phrase implies; gradually 
the solution attains expressive form. In its final form — 
" Rex in regno suo est Imperator regni sui " — we have 
nothing more than the idea expressed in the "Ci vitas sibi 
princeps " of Bartolus, or the " Dominus princeps terrae 
suae " of Cino, put into the neat, epigrammatic form of 
an axiom. But in the history of thought the small 
step, which converts an idea from the stage of variable 
terminology into that of a quotation, is always of 
decisive importance and often the work of generations. 
This essay will venture on no dogmatic statement as to 
who it was that took this step. But, if we leave aside 
the Quaestio in Utramque Partem and the question of its 
date, we may perhaps suggest that the praise is due to 
Oldradus, one of the masters of Bartolus, rather than to 
his pupil, Baldus, who has sometimes been considered 
the author of the phrase 1 . The wording of the phrase 
as we find it in Oldradus 2 — " Quilibet rex de facto 
tenet locum Imperatoris in regno suo " — is almost 
identical with the phrase, as we find it in Baldus — 
" Rex in regno suo est Imperator regni sui." Albericus 
de Rosate 3 , a contemporary of Bartolus, quotes the 

1 By Chenon, "Le Droit Romain a la Curia Regis de Philippe- 
Auguste a Philippe-le-Bel." Gierke, Deutsche Genossenschaftsrecht, 
vol. in. p. 639, refers to no lawyer of earlier date than Baldus. 

2 Vide Quaest. ccxxx. (De Donat. et Testament.) : "Nisi forte quis 
non improbabiliter diceret hoc locum habere in donationibus com- 
munibus, secus autem in regalibus, quia cum quilibet rex de facto 
teneat locum imperatoris in regno suo, tales donationes legibus non 
subjiciuntur..." 

3 Vide Comment, on Codex, Part i. (C. i. 2. 19), p. 19, § 3: 



Ill] THE PROBLEM OF THE EMPIRE 381 

phrase on the authority of, and in the form given to it by, 
Oldradus. Bodin 1 , we may remember, called Oldradus 
" the first of his age " to maintain the de jure, as well 
as the de facto, independence of the king of France. 
The evidence is suggestive, but incomplete. This 
we may say : whoever it was, Oldradus or some other 
lawyer, who took the step, he did a work of the highest 
importance in the history of political thought and one 
deserving the highest praise — teneat secum servetque 
sepulchro. 

And high praise, in this connexion, is also due to 
Bartolus. Certainly, Bartolus did not himself invent 
this solution, did not put it into its final, axiomatic 
. form. But we are almost as certainly justified in saying 
| that he was the first lawyer to adopt it fearlessly, con- 
sistently and generally. A man like Bartolus was 
admirably placed to solve the problems which the 
Empire presented for solution. He was, it is true, an 
Italian and not without some feeling of patriotism; it 
appears when he laments Italy " tota plena tyrannis," 
or discusses how it is that the Roman Emperor is in 
Germany, beyond the Alps. But these were exceptional 
moments, and in general, when commenting on his 

" Quaero, utrum donatio regis non recognoscentis superiorem insinua- 
tione indigeat : dom. Oldradus dicit quod non, quia secundum eum 
hodie de facto quilibet rex in regno suo tenet locum imperatoris : 
sed imperiales donationes ceteris non sunt equales quo ad insinua- 
tionem vel alia. ..Quod an sit verum," he adds, "dubito nisi propter 
auctoritatem dicentis." 

1 Vide Bodin, De la Republique, Book i. p. 139 : "...Mais il y a un 
docteur Espagnol, qui dit que le Roy de France ne recognoist ny 
de fait, ny de droit prince du monde : comme aussi fait Oldrad, le 
premier de son aage." Bodin refers to Oldradus' very interesting 
Quaestio lxix. 



382 THE PROBLEM OF THE EMPIRE [CH. 

I Roman Law, he was a citizen of the universal Roman 
Empire rather than an Italian patriot. 

The life of such a man, wandering from independent 
city to city, until he found citizenship and a permanent 
abode at Perugia, was far more likely to bring vividly 
before his eyes the need of a " superioris copia " than 
to stimulate his patriotism for a hopelessly divided 
Italy. That the Emperor was de jure superior Bartolus 
never doubted. Only, with his unerring sense of prac- 
tical needs, he recognised at once that, since the 
Emperor's de facto power could not make effective his 
de jure superiority, such de jure superiority was useless. 
Bartolus began by seeing a single universal Empire ; 
he ended by recognising a miniature Empire in every 
de facto independent power. 

Bartolus was able to do this, because the motive 
which prompted all his political thought was utility — 
the desire to accommodate law to facts. We have 
attempted to show in this chapter that the problems 
before Bartolus faced the political thinker and publicist 
no less than the lawyer, and that the solutions of this 
problem offered by the former were largely influenced by 
a number of considerations — in particular by patriotic 
sentiment and by the material or materials, with which 
each writer worked. It would be a great mistake to think 
that in the Middle Ages there was a simple antagonism 
between the universal Roman Empire and national 
particularism. Each nation, as it grew more and more 
distinct, viewed the Empire in the light of its particular 
history, and championed it or opposed it according 
to circumstances — " appropriated " it or " opposed " it, 
as Dante said of the Ghibellines and Guelphs. Many 



Ill] THE PROBLEM OF THE EMPIRE 383 

of the lawyers also were swayed by patriotic motives, 
but Bartolus, at any rate, was swayed far more by the 
sense of political needs. His Empire was the Empire 
which the Glossators had derived from the Roman Law 
Books ; and while most of the politicians and publicists 
whom we have examined, ended either in throwing over 
the Empire altogether or in setting it up again in 
its universality, to the interest of this or that nation, 
Bartolus was able to leave his de jure Empire intact, 
and at the same time, step by step, to build up political 
powers, themselves within their particular limits invested 
de facto with all the peculiar marks and privileges of 
the one universal Empire. The modern State, let us 
remember, is not only the self-sufficing ttoXls, it is also 
" Imperial " — and it was the lawyers, not the political 
philosophers, who transformed the universal Empire 
into a system of " Imperial " States. Among the 
lawyers, no one, in this regard, played a more promi- 
nent part than Bartolus. 



CHAPTER IV 

CONCLUSION 

The two distinguished scholars, who alone have 
examined the political thought of Bartolus in any detail, 
have arrived at very different judgments as to its value. 
To Dr Figgis 1 , Bartolus "is one of those minds which 
help to carry over to one age the thoughts of another and 
transmit by transmuting them the intellectual heritage 
of their day." To Dr Chiapelli 2 he is one who, though 
the contemporary of Petrarch, never freed himself from 
the company of medieval thinkers, one who consistently 
adopted the political conceptions of the Middle Ages, 

1 Vide Bartolus and the development of European Political Ideas, 
pp. 166-8. 

2 Vide "Le Idee Politiche del Bartolo" (in Archivio Giuridico, 
vol. xxvn. 1881), pp. 433-9. Vide pp. 433-4: "II Bartolo, quantun- 
que vivesse nell' eta del Petrarca e del Boccaccio, all' albeggiare cioe 
del Binascimento, allorche molte nuove vie si aprivano al pensiero 
umano, e benche aggiungesse alia vecchia cultura alcuni elementi 
della nuova, poiche le sue opere ci rivelano un conoscitore dell' Ebra- 
ico e della Geometria, pur non ostante non si stacco della schiera 
dei pensatori della eta di mezzo. Continuava a far proprio il concetto 
politico del medioevo, e seguiva constantemente come i suoi predeces- 
sori i due grandi luminari di ogni sapere di quella epoca, la Bibbia, il 
fondamento di ogni verita, ed Aristotele, il gran maestro delle scuole." 



IV] CONCLUSION 385 

and, like his predecessors, followed unfalteringly the 
two great luminaries of all medieval knowledge, the 
Bible and Aristotle. Dr Chiapelli's name is one that 
carries great weight in the study of the medieval 
history of Roman Law ; yet, salva reverentia, this essay 
must venture to disagree fundamentally with his judg- 
ment on the political thought of Bartolus. Even more 
fundamentally must we disagree with Dr Chiapelli's 
statement of the position which Bartolus occupies in 
the history of political thought. 

What is the evidence for his supposed dependence 
upon Aristotle 1 ? The scholastic form of his com- 
mentaries proves nothing; moreover, Savigny pointed 
out long ago that Bartolus was by no means the first 
lawyer, whose work bore this characteristic 2 . How- 
ever, all that here concerns us is his dependence on 
Aristotle in the sphere of Politics. Let us turn back, 
therefore, to the two 3 occasions, on which we have found 
Aristotle mentioned by him. 

1 As regards his dependence upon the Bible, few words are 
necessary. Of course the Bible was authoritative for Bartolus — it 
represented the Divine Law of Bevelation. But it was equally au- 
thoritative for every other medieval thinker, for Marsiglio and Occam, 
for S. Bernard and Aquinas — just as it was, we may add, for Luther, 
Calvin, Hooker and Johannes Althusius. 

2 Vide Savigny, vol. vi. Chap. 53, p. 155: "So wird ihm nicht 
selten die erste Einfuhrung der Scholastik in unsere Exegese zuge- 
schrieben : ganz mit unrecht, wie schon oben gezeigt worden ist.' 
Allerdings findet sich bei ihm, wie bei mehreren Vorgangern und 
Zeitgenossen, eine sichtbare Neigung zur Dialectik; allein nicht bei 
ihm zuerst, oder mit besonderer Uebertreibung und Verkehrheit. Im 
Gegentheil weiss er diese Methode, die bei den Meisten nur als 
geistloser und unfruchtbarer Schulzwang erscheint, mit Verstand 
anzuwenden." 

3 I can remember no other occasions but these, on which Bartolus 
mentions Aristotle. 

w. 25 



386 CONCLUSION [ch. 

On the first of these 1 , he mentioned the works of 
Aristotle, along with those of Hippocrates, as an ex- 
ample of "scripturae, quae tamquam authenticae in 
studiis servantur," and are therefore authoritative. Now, 
of course, there is no doubt that had Bartolus been 
asked whether Aristotle was authoritative, he would 
have answered, yes. But that he himself was a pro- 
found student of Aristotle, or that he was profoundly 
influenced by Aristotle's political thought, is quite a 
different matter. Aristotle is generally authoritative, 
because in the particular Studium, over which he pre- 
sides, he is considered as such; but he himself no 
more presides over the lawyer's Studium than does 
Hippocrates. Hippocrates is equally authoritative in 
his particular Studium, but no one will suggest that 
therefore Bartolus himself was either a profound student 
of Hippocrates or profoundly influenced by him. 

That Bartolus considered Aristotle as generally 
authoritative, but not in any sense a particular 
authority in the lawyer's Studium, comes out clearly 
in his Tract de Regimwe Civitatis. We need add 
little to what we have said above 2 . Bartolus, in 
mentioning Aristotle, was evidently mentioning an 
authority by no means familiar to his legal readers : 
Aristotle's words would mean little to them — "juristis 
quibus loquor non saperent." Moreover, when Bartolus 
tells us that Egidius Romanus investigates the best 
form of polity "clarius" than Aristotle, we might be 

1 Vide above, p. 8. 

2 Vide above, pp. 174 and ff. The continual antithesis between 
"Aristotles" and "nos" in this treatise should be particularly 
noted. Vide a particularly good example, above, p. 179, n. 1. 



IV] CONCLUSION 387 

inclined to suspect that he has not got his know- 
ledge of Aristotle at first hand, but rather from 
Egidius himself. Be that, however, as it may, the 
authority to which Bartolus primarily turns, here as 
elsewhere, is not Aristotle, but "leges nostrae." The 
history of Rome, with references to the Law Books, is 
made to illustrate the comparative value of the different 
forms of polity. His references to Aristotle or Egidius 
merely show the breadth of his learning, which we 
are very far from wishing to deny, but they in no 
way prove the dependence of his political thought on 
Aristotle or his medieval exponents. 

The foundations of the political thought of Bartolus, v 
were the political conceptions which the Bolognese 
Glossators, a century at least before Aquinas and the 
revived influence of Aristotle's Politics, had derived 
from the texts of the LawJBooks literally interpreted. 
Where Bartolus went beyond the Glossators, he did so, 
not because he was influenced by the new Aristotelian 
political theories, but because his object, unlike that of 
the Glossators, was to evolve from his texts a law rather 
practically acceptable than scientifically correct. "Fuit 
vir multum adhaerens practicae 1 ." Bartolus started 
from the political conceptions of the Glossators ; he 
might develop them upon lines which the Glossators 
themselves had already, though hesitatingly, pointed 
out, or he might give them an entirely new direction 
— but, in either case, it was from them that he started. 
It is, then, to the Glossators and their texts, not to 
Aristotle, that we have to go back in tracing the 
filiation of his political thought. 

1 Vide Savigny, vol. vi. Chap. 53, p. 139, Zeugniss 4. 

25—2 



388 CONCLUSION [CH. 

If there is a " dualism 1 " in the thought of Bartolus, 
it is to be accounted~ibr, not by the fusion of two prin- 
ciples of thought — one medieval and the other antique — 

; but to the distinction between right and fact, which 
dominated all his thought. De jure Bartolus never 
gave up the old political ideas of the Glossators ; 
de jure the Emperor was still lord of the world, the 1 
Empire still the one universal State. It is easy for us, 
on this side of the Renaissance and Reformation 2 , 

\to see that Bartolus was wrong and that the day of 
the Empire was over. Bartolus lived in the first half 
of the fourteenth century : Frederick II had not been 
dead a century; Sigismund was yet to come, and 
Charles V. No one can say what Charles V might 
have made of the Empire — and we know how ardently 
he desired the Imperial crown — if his hands had not 
been tied during the whole of his reign by the religious 
troubles in Germany. But the important point is that 
the retention, de jure, of the Empire in the full extent 
of its pristine power and claims, in no way prevented 
Bartolus from developing theories to fit a world in 
which fact and right no longer coincided. The political 

'thought of Bartolus had two sides — on the one a theory 
lof a single World-state, the Imperium Romanum ; on 
the reverse a theory of a world of States. There was 
no real confusion. Bartolus did not pass from one to 

1 Vide Chiapelli, op. cit. pp. 434-5. 

2 It is interesting to note how Christian Europe, even after the 
Eeformation, owing to the territorial position of the Hapsburg Em- 
pire, finds in the Emperor its leader against the Turk. Thus a very 
Protestant Englishman, Sir Edwin Sandys, can talk at the end of 
the sixteenth century of "our Christian Emperor." Vide his very 
interesting Europae Speculum ("Of Germany," p. 196). 



IV] CONCLUSION 389 

the other without giving due warning. We have only 
to remember that the legend on one side was "de jure," 
and on the other "de facto," in order to see that his politi- 
cal thought was really consistent. It is true, there was 
one exception. But Dr Chiapelli, we would suggest, has 
made far too much of the theories of Bartolus on the 
relations between the temporal and spiritual powers 1 . 
We must take account of them, if we wish to estimate 
his honesty; if we mean to judge his place in the 
history of thought, they need not detain us. They are 
not really an integral part of his thought — almost, in 
so many words, he has told us that he was not saying 
what he meant. How little stress his contemporaries 
laid on his supposed Papalism may be gauged by the 
charge which his great pupil Baldus, a real Papalist, 
made against him — " semper tenebat opiniones multum 
placentes laicis: et hoc facit opinionibus suis multum 
honorem 2 ." 

Moreover, if we are to judge Bartolus at. his 
correct value, we must not think of him in isolation. 
Indeed, this is true, up to a point, of every thinker. 
How often can we point to any single thinker, as the 
actual author of any single idea or theory? "Ideas," 
as Lord Acton said 3 , "have a radiation and develop- 
ment of their own, in which men play the part of 
godfathers and godmothers more than that of legitimate 
parents." This is especially true of a thinker like 
Bartolus. We must consider him as one of the long 
series of medieval civilians and canonists. He was 

1 Chiapelli, op. cit. pp. 435-6. 

2 Quoted by Savigny, vol. vi. chap. 53, p. 149, note c. 

3 Vide Letters to Mary, daughter of Rt. Hon. W. E. Gladstone, 
pp. 6-7. 



390 CONCLUSION [CH. 

perhaps the greatest, he was certainly the most famous 
of them, and it is as such that we must judge him. 

The work of the medieval lawyers was, not so much 
to elaborate ready-made political theories, as to forge 
and sharpen many of the tools, with which the political 
philosophy of the modern world was to work 1 . Dr Gierke 
has shown how the elaboration by the civilians and 
canonists of their doctrine of the corporation has re- 
acted on political thought. Thus the very democratic 
theories of Bartolus on the internal government of the 
Civitas take on a new and far more significant meaning, 
when we remember that the theories, which he has ela- 
borated for the "universitas civitatis," may be adapted to 
serve world-wide " universitates," the Imperium or the 
Ecclesia, in the likeness, and on the foundations, of which 
political philosophy was to establish the modern State. 

Whether Bartolus was a profound or an original 
thinker 2 we need not ask ; that he is an important one 
in the history of political thought is the main point. 
It is not merely useful, it is essential, to study Bartolus, 
as illustrating the tendencies of the medieval jurists: 
it is essential to the full understanding alike of medieval 
and of modern thought. 

Bartolus, Dr Chiapelli says, had never freed himself 

1 Vide Maitland, Introd. to Gierke, Pol. Theories of the Middle 
Age, p. viii. 

2 Vide Chiapelli, op. cit., pp. 438-9: "...Non crediamo, che si 
possa considerare come un profondo ed originale pensatore nella 
politica. Le sue dottrine in questo proposito non hanno moltissima 
importanza scientificamente ; soltanto meritano un esame accurato 
per conoscere profondamente le tendenze delle scuole giuridiche, e 
dei grandi giureconsulti del secolo XIV, e la influenza che poterono 
esercitare sulla societa, tanto piu che il Bartolo fu il primo legista 
che scrisse dei veri e proprii trattati politici." 



IV] CONCLUSION 391 

from the company of medieval thinkers. Rightly or 
wrongly, we have attempted in this essay to give the 
term " medieval " a purely chronological meaning. 
"Medieval political thought" has meant all such 
political thought as was produced in the odd thousand 
years known as the Middle Ages. The political theories 
of Gregory VII, or of Aquinas, or of Bartolus, or of 
Petrarch have for us been all equally "medieval." 

The truth is that, though in certain regards the 
Middle Ages are a single period, within that period 
there are divisions, which cannot be disregarded. Not 
only in the Middle Ages, as indeed in all other ages, 
were actual political conditions continually changing 
the matter and direction of political thought, but, 
further, both the matter and the manner of political 
thought were being continually changed by an influx of 
new material for thought. In the early Middle Ages, 
the so-called Dark Ages, the one material was theology 
— the dominating influence was that of S. Augustine. 
But from the end of the eleventh century to the close 
of the thirteenth century, the history of political 
thought is marked first by the Bolognese revival of 
Roman Law, and secondly by the reintroduction of 
Aristotle's Politics into western Europe ; it has been 
one of the main theses of this essay that, in the later 
Middle Ages, we have to distinguish those political con- 
ceptions and theories which are based on Justinian's 
Law Books from those which are based on Aristotle's 
Politics. To understand the modern State it is not 
enough to go back to Aristotle's 7ro\t?; we have to 
go back to the theologian's " Civitas Dei " and to 
the lawyer's "Civitas sibi princeps." The English 



392 CONCLUSION [CH. 

crown, it is well to remember, was "Imperial" long 
before we had a colonial Empire ; the idea of the State 
as containing many churches and religions is so new, as 
to be still unacceptable to many. To understand the 
modern State the Middle Ages must surely receive as 
ample and detailed a study, as the ancient world or the 
modern world itself. And to understand how the 
modern State has become " Imperial," and what that 
signifies, we must go back to the medieval civilian and 
his " Civitas " or " Rex sibi princeps." 

The Renaissance brought with it new ideals and 
new methods, and it is because we are still under their 
fast fading, but still living, influence, that it is by no 
means easy for us to do justice to a man like Bartolus. 
We too, like Laurentius Valla, must feel a little con- 
tempt for any man who wrote such very bad Latin. 
The ideal of our education is still, to a great extent, 
Colet's *' good literature, both Latin and Greek " — 

Choice Latin, picked phrase, Tully's every word — 
and it would be pedantic to pretend that our attitude 
is altogether wrong. The style and method of Bartolus 
are, it may be owned, to a great extent barbarous; 
only, barbarous or not, he is important and is influ- 
encing our thought and our lives at this moment. 
Bartolus, it is true, ceased at the Renaissance to be 
the unquestioned "princeps jurisconsultorum" ; for the 
people, who cared for letters, he was merely one of 
those " old mastiffs who never understood the least 
law of the Pandects 1 ." But there were many, then 
as now, who cared little for letters. Bartolus did not 
lose his hold on the courts. The Roman Law which 
1 Vide Eabelais, n. 10, p. 220 (Urquart's transl.). 



IV] CONCLUSION 393 

Germany " received," was the law which Bartolus and 
his followers, the Bartolists, had evolved. Moreover, 
among those who cared for letters, there were some who 
thought differently from Cujas and Eabelais. Both 
Albericus Gentilis and Bodin were Bartolists. Alberi- 
cus wrote a special work to defend the Bartolists 
against the " Novitii 1 ." Bodin, in attacking Cujas, 
tells us that he too, when he only taught, despised 
the Bartolist tradition, but that he learned to think 
differently after the experience of practical work: — 
" Fuit enim tempus illud, cum Populi Romani jura 
publice apud Tolosates docerem, ac valde sapiens mihi 
ipsi viderer in adolescentium corona: illos autem juris 
scientiae principes, Bartolum inquam, Baldum... nihil 
aut parum admodum sapere arbitrarer: postea vero 
quam in foro jurisprudentiae sacrae initiatus, ac diurno 
rerum agendarum usu confirmatus sum, tandem ali- 
quando intellexi non in scholastico pulvere, sed in acie 
forensi, non in syllabarum momentis, sed in aequitatis 
ac justitiae ponderibus veram ac solidam juris sapien- 
tiam positam esse 2 ." 

1 Vide his De Juris Interpretibus Dialogi Sex. Throughout he 
recognises that the chief ground of attack against the Bartolists is 
humanistic : he allows the superiority of the Novitii as humanists. 
Vide Dialogus n. p. 23: "Vix tamen est, ut in hoc interpretationis 
genere, quod analogicum dicunt, novitii Bartolum lacessant, sed in 
etymologico: bonarum litterarum rudem clamant." Again on p. 24 
verso : ' ' Modo etiam dicebamus, in etymologica interpretatione novitios 
interpretes valere plurimum, in analogica, quae propria nostra est, 
minimum." 

2 Vide the Introductory Latin letter to the De La Republique. It 
is interesting to note, at the same time, how Bodin turns the tables 
on Cujas. Cujas is accused of preferring Apuleius to Cicero — 
Apuleius "qui primus foeda barbarie Latini sermonis puritatem... 
conspurcavit." 



394 CONCLUSION [CH. IV 

The fact that these two thinkers, whose influence 
will not easily be overrated, are here, in the early years 
of the history of modern thought, definitely inscribing 
themselves as " Bartolists," is of immense significance. 

But the influence of Bartolus has not been restricted 
to those who consciously accepted him. Bartolus is 
important, not because of the direct influence 1 which 
he has exerted over this or that thinker, but because 
the doctrines which he, and the medieval lawyers in 
general, had evolved in expounding their law, passed 
into general currency through the works of political 
thinkers proper. Our world is little like the world of 
the medieval civilian ; but he has played no small part 
in forming it. 

1 With the exception perhaps of the Tract, de Tyrannia, on which 
vide Figgis, Bartolus and the Development of European Political Ideas, 
pp. 162-3. Salvimeni, in his La Teoria di Bartolo da Sassoferrato 
sulle Gostituzioni Politiche, points out that Bartolus in his Tract, de 
Reg. Civ. forestalls Montesquieu's theory of the relative value of the 
different forms of polity. He will not decide, however, whether there 
is any direct connexion. It certainly seems improbable. As a matter 
of fact, Bartolus is not the only thinker before Montesquieu to main- 
tain this theory. Dr Figgis mentions Savonarola (op. cit. p. 161). 
Vide also John of Paris (above, p. 351), and Gierke, Johannes Althusius, 
p. 61, note 21. 



APPENDIX A 

I have attempted to collect here one or two points 
in the life of Bartolus, wherein Savigny needs either 
correction or amplification. 

(1) According to Savigny, following Pellini and 
Vermiglioli, the family of Bartolus had originally been 
called Severi, the name being altered to Alfani, in 
honour of a nephew of Bartolus, one Alfanus, a man, it 
appears, of some importance. Rossi 1 , however (vol. VI, 
p. 239), shows that the family name was originally 
Bentivogli — "il merito di questa scoperta," he says, 
"devesi ad Antonio Brandimarte minor conventuale, 
che nel 1827 scrisse al gonfaloniere di Sassoferrato 
di aver trovato nell' archivio notarile di detta terra fra 
i rogiti di Buzio Bondimandi, sotto il giorno 5 febbraio 
1335 che 'N.N. fuerunt confessi recepisse in societatem 
a Cicco Bonacursii Bentevoli de Saxoferrato tres vac- 
cas/ &c." Bernabei 2 says that this had already been 
noted by Sansovino. It was the mother of Bartolus, he 
maintains, who belonged to the Severi, and whose family 
changed their name to Alfani in the fifteenth century. 
Bartolus' will, in Rossi (vi. p. 49, No. 100), gives us a 
great deal of information about his family. Vide also 
Rossi vi. pp. 240-9 for some interesting particulars 

1 Vide p. 1, note 1 above. 

2 Bartolo da Sassoferrato e la Scienza delle Leggi, p. 17. 



396 APPENDIX A 

as to his houses and on the fate of his tomb in 
Perugia. 

(2) The most disputable period in the life of Bartolus 
is between the date of his doctorate (Nov. 1334 according 
to the diploma, first printed by Lancellotti, Vita Bartoli) 
and the date of his first Professorship, at Pisa, which 
Savigny shows to have begun in 1339. We know, to 
begin with, that Bartolus was Assessor both at Todi and 
Pisa 1 , before he began to teach at Pisa; while he is fur- 
ther reported to have been Assessor at Cagli and to have 
taught at Padua and Bologna. Finally, the " magnum 
tempus," which Bartolus records that he spent near 
Bologna at S. Victor — probably, as Savigny says, in a 
religious house — "ad studendum et revidendum libros 
per meipsum," must also fall within this period. 

Fable has explained this retreat as a forced retire- 
ment in consequence, either of an unjust sentence of 
death, or the over-torture of a young man, for which 
Bartolus, as Assessor, was responsible. Savigny, and 
most modern writers, reject this, and rightly so far 
as concerns the period of seclusion, which we have 
no evidence to think anything but voluntary. But 
that Bartolus had been guilty of over-severity in tor- 
ture is but too true, and rests on the unimpeachable 
evidence of the following passage from his Comment, 
on the Dig. Nov. Part II. 2 — "Sed quid si judex torsit 
aliquem tantum quod mortuus est ?. ..Videtur dicendum 
judicem teneri. Breviter dico sic. Si judex excessit 
modum consuetum et modum qui debebat adhiberi 
secundum qualitatem personae torsae, tenetur, alias 
secus. Hoc incidit mihi, quia dum viderem juvenem 

1 Vide above, chap, i., p. 3. 2 (D. xlviii. 18. 7) p. 536. 



APPENDIX A 397 

robustum, torsi ilium, et statim fere mortuus est, et 
ideo inspiciendum est an possit judici imputari culpa et 
similia." This passage is clearly the origin of the 
whole story ; and so far as it goes, it cannot be denied. 
But it gives us no warrant for connecting the period of 
solitude with this incident, nor does Bartolus tell us 
whether it had any consequences as regards himself 
— whether it ended his Assessorship, or whether it 
happened at Pisa or at Todi 1 . 

We cannot fix the dates of the period of retreat or 
of the Assessorships at Pisa and Todi exactly, but we 
may confidently place all these events within the period 
Nov. 1334-39. Further, they are the only events 
of which we can be certain within those dates. 

The Assessorship at Cagli is reported by Mazzu- 
chelli (Scrittori d' Italia, s.v. Bartolo, p. 461, note 10) on 
the strength of a document, according to which Bartolus. 
it seems, is named as Assessor there in 1340. This 
date seems almost impossible, if Bartolus began to teach 
in 1339 at Pisa ; but, on the other hand, an Assessor- 
ship at Cagli is not impossible in itself; and one very 
interesting passage in his works points to his having 
had some first-hand knowledge of the place 2 . 

1 It is worth noting that in his Comment, on Big. Nov. Part n. 
(D. xlviii. 18. 15), p. 542, Bartolus supports the Gloss, in opposition to 
Azo, in maintaining that "liberi homines viles, ut artifices facientes 
viles artes, obscuri et ignoti forsan," can give evidence without tor- 
ture, and in his Comment, on D. xlviii. 8. 1, he says that "potestates 
et rectores terrarum, qui cogunt testes per tormenta, ut dicant falsum," 
are amenable to this Lex Cornelia (p. 490). 

2 Comment, on Dig. Nov. Part i. (D. xliii. 10. 1), p. 434: 
" Quandoque est deterius viam esse multum amplam. Ita vides 
hie... In quo autem ista deterioratio fit, si est magis ampla, cogi- 
tabitis: tamen dico vobis quod ego vidi in quadam civitate: cum 



398 APPENDIX A 

The Professorship at Padua has no evidence what- 
ever to support it, and seems to rest on a single 
statement of Caccialupus, a fifteenth-century writer. 
I have found no evidence in Bartolus to corroborate it 
in any degree. 

The Professorship at Bologna was accepted by 
Savigny, though he acknowledged the difficulties in 
the way of doing so. Bartolus is supposed to have 
succeeded his master, Raynerius Forlivensis, at 
Bologna, and to have been bitterly attacked by 
Raynerius for controverting his opinions 1 . Now, 
Bartolus was the colleague of Raynerius at Pisa, and 
there, we know, was on good terms with him 2 ; and it 
has, in fact, been shown conclusively by Lattes, Un 
Punto Controverso nella Biographia di Bartolo 3 , that 

ibi essent multae viae amplae, posita fuit necessitas hominibus cir- 
cumhabitantibus occupandi et restringendi eas. Eatio, quia quando 
tumultus erat in civitate propter viarum latitudinem, civitas reddebatur 
debilior ad defendendum, et hoc fuit in civitate Calii." Cagli is 
mentioned again in Comment, on Dig. Nov. Part n. (D. l. 1. 27, 
§ Celsus), p. 653, §4. .."In civitate Calii, quae fuit destructa in uno 
loco et reposita in alio ejusdem territorii." 

1 Lancellotti, Vita Bartoli, pp. 73 and ff., we may perhaps note 
here, has exposed the fable of the supposed quarrel between Bartolus 
and Baldus. Kenan, Averroes et V Averroisme, p. 33, compares it 
with the fable of the quarrel between Avicenna and Averroes. 

2 Yide Comment, on Dig. Nov. Part n. (D. xlv. 1. 73, § Stichii), 
p. 84: "Et hoc tenent omnes doctores excepto do. Kay. et magno 
tempore tenuit istam; postea mutavit opinionem...Postquam dixi sibi 
istud, cum semel Pisis legeremus; ipse respondit...Sed dum legebam 
Pisis, sequendo Cassium, qui sententiam magistri sui bene excusat, 
dixi eum bene dicere." 

3 Turin 1898. We may quote the conclusion of his pamphlet 
(p. 12): "Da questi fatti si pud concludere che le parole ingiuriose e 
le critiche acerbe contenute negli ultimi paragrafi della repetitio di 
Ranieri sulla 1. Omnes Populi non si riferiscono a Bartolo, sebbene 
la maggior parte di quello scritto sia rivolta contro di lui: Ranieri 



APPENDIX A 399 

the " Repetitio " on the law " Caesar," the doctrines of 
which Raynerius attacks with especial bitterness, was 
not composed by Bartolus at all, but is to be ascribed 
to Signorolus de Homodeis, a Milanese contemporary, 
also a pupil of Raynerius; and that it was he, not 
Bartolus, who succeeded Raynerius at Bologna. There 
can be little doubt that Lattes is correct — neither 
Bartolus nor Baldus mention this Professorship, nor 
have I found any incidental references to it 1 . 

(3) In the printed editions of Bartolus the " Repe- 
titio " on the law, D. xxxi. 1. 66, § Duorum (Comment. 
on Infort., Part II.), is subscribed as follows : — " Hie 
§ fuit repetitus per me Bartolum de Saxoferrato mini- 
mum inter legum doctores nunc infortiatum legentem 
in alma civitate Pisarum sub anno Domini 1351 de 
mense Junii." If this subscription were correct, it 
would mean that Bartolus returned to Pisa some time 
before 1351 — and such an hypothesis has been adopted 2 . 
But Savigny rightly saw that this was unlikely, and 
noted that either the date or the name of the town 
must be wrong — which, he did not decide. The evi- 
dence of such MSS., as I have been able to see, points 

prese di mira Sigiiorolo Omodei, vero autore della repetitio sulla 1. 
Caesar, e che veramente successe al maestro nello studio di Bologna, 
cosicche anche P unico argomento, che poteva tuttavia addursi intomo 
alP insegnamento di Bartolo in quell' universita, apparisce al tutto 
infondato." The doctrines of Bartolus which Baynerius attacks — 
but without bitterness — are in his Bepetitio on the law ' ' Omnes 
Populi" (D. i. 1. 9). 

1 In Comment, on Infort. Part i. (D. xxvn. 9. 3, § Si pupillus), 
p. 248, Bartolus says: "Et induxi istum § in prima vice quando 
redii de Bononia, in argumentum ad quaestionem...," but this can 
refer, of course, to his return after taking his doctor's degree. 

2 By Bernabei, e.g. op. cit. p. 32. 



400 APPENDIX A 

undoubtedly to the conclusion that the date is wrong, 
and that it ought to be 1341. All the MSS. agree 
in having Pisa as the name of the place ; in a MS. of 
the British Museum (Add. 34,748), the " Repetitio " is 
subscribed as follows — "Repetitio predicta facta fuit per 
me Bartollum de sasso ferrato minimum inter legum 
doctores nunc infortiatum legentem in alma civitate 
pisarum sub anno domini mcccxlj de mense Junii" 
(fol. 139 verso). This MS., it may be added, is exceed- 
ingly good authority, since it was completed in 1378, 
that is to say, scarcely more than twenty years after 
the death of Bartolus ; but its evidence is balanced by 
that of another fourteenth-century MS., at Peterhouse, 
Cambridge, w T here the subscription runs: — " Hie § fuit 
repetitus per me Bar. de saxofer. minimum inter legum 
doctores nunc infortiatum legentem in alma civitate 
pisarum sub anno mcccli de mense Junii" (fol. 28 of 
Part II. The MS. is no. 36 in Dr James' Catalogue). 
It is, however, far more probable that an " x " has 
slipped out than in — and this is borne out by the 
evidence of a fifteenth-century MS. at Pembroke 
College, Cambridge (No. 138 of Dr James' Catalogue). 
Here the subscription runs — "Hie § fuit repetitus per 
me Bartholum de Saxo ferrato minimum inter doc- 
tores nunc infortiatum legentem in civitate pisarum 
sub anno Mccc et hoc de mense Junii " (fol. 72 
verso). Now it is clear that the date Mccc is wrong 
and that " et hoc " has no meaning whatever 1 ; and 

1 Similarly in a fifteenth-century MS. at Venice (Bibl. Naz. Cod. 
coin. Bess.), fol. 66, we read: "Hie § fuit repetitus per me Bar. de 
saxoferrato minimum inter legum doctores nunc inforciatum legentem 
in alma civitate pisarum sub anno M° hoc de mense Junii." In 
a Florence MS. (Bibl. Naz. MSS. Magi. xxix. 25), fol. 173, the 



APPENDIX A 401 

Mr Minns, librarian of Pembroke, who kindly showed 
me the MS., suggested to me that the " et hoc " was 
nothing more than a misreading by the copyist of "xlj." 
We may therefore say that the date of the " Repetitio " 
should probably be, as in the British Museum MS., 
1341, and that Bartolus did not go as Professor a 
second time to Pisa, the only evidence for the second 
Professorship being the subscription to this "Repetitio," 
as printed. 

(4) Savigny's list (in op. cit. vol. VI., Anhang in.) of 
the dates of the Professorships held by Bartolus may 
be supplemented as follows: — 

1341 — The subscription of the "Repetitio" on 
D. xxxi. 1. 66, § Duorum, which we have just been 
considering. 

1342 — " Deo Gratias, repetitus fait praesens § per 
me Bar to. de Saxoferrato in civitate felici Pisarum 
1342 die 15 mensis Novembris " (" Repetitio " on D. 
xlv. 1. 4, § Cato, p. 23). 

1343 — " Repetita fait per me Bart, minimum juris 
doctorem in felici civitate Perusii a. d. 1343 die 29 Mar. 
quae mea dicta cujuslibet melius sententientis correc- 
tioni submitto " (" Repetitio " on D. xvi. 3. 32, p. 326). 

1344 — As regards the " Repetitiones " mentioned 
by Savigny under this date, on the authority of Bini 
and Merkel, vide Rossi, vol. v. p. 306, who says — "e 
il mio debito notare che nessuno dei molti scritti di 
Bartolo raccolti nei codici della Communale di Perugia 
...reca la data del 1344." 

1345 — "Repetita per me Bar. de Saxoferrato... in 

' ' Repetitio ' ' is signed — ' ' Repetitus per me Bartolum de Saxoferrato ' '— 
but undated. 

w. 26 



402 APPENDIX A 

felicissima civitate Perusii Anno Domini 1345 die Mer- 
curii mensis Martii" ("Repetitio " on C. vin. 14. 3) 1 . 

1346 — A "Repetitio" of this date mentioned by 
Rossi (vol. v. p. 306) as existing at Perugia. He adds 
— "II Savigny e stato tratto in inganno dal Bini, 
quando fidandosi di lui, ha citato le Repetitiones di 
detto codice per 1' anno 1347." 

1351 — Document no. 89 in Rossi (vol. v. p. 366), 
which he dates 1351, Oct. 20th. 

1354 — Savigny mentions, on the authority of Diplo- 
vatacius, a "Repetitio" on D. xn. 31 for this year. The 
"Repetitio" is undated in the editions which I have 
seen, but in a MS. of the Digestum Vetus, in the 
Peterhouse Library (No. 28 of Dr James' Catalogue), 
it is subscribed as follows, thus confirming the state- 
ment of Diplovatacius — " Repetita fuit hec 1. per domi- 
nium Bar. Anno domini Mcccliiii deo gratias 2 ." 



APPENDIX B 

As regards Bartolus and the canonists, we saw in 
the first chapter that Bartolus considered the Canon 
Law as "vidua" without the Civil Law, and maintained 
that there could be no justice in the clerical courts, 
if the "civilis sapientia" were rejected. This is not 

1 Venice ed. (1596), p. 98 verso: there is no subscription in the 
Bale ed. 

2 So in a MS. at Venice (Bibl. Naz. Cod. cci. Bess.), fol. 245— 
' ' Bepetita fuit hec lex per dominum Bartolum Anno domini Mcccliiii 

deo gratias." 



APPENDIX B 403 

inconsistent with his submissive attitude towards Canon 
Law in its own domain. Bartolus was quite ready to 
criticise the Canon Law and the canonists, but not in 
spiritual matters — there, in general, he accepted their 
word as final. On the one side we may note passages 
like the following — " Canonistae tamen videntur aliter 
sentire, licet credam eos non bene dicere," in Comment, 
on Codex, Part I. (C. II. 53. 7) p. 285, § 8 ; " Non obstat 
quod canonistae dicant," in Comment, on Infort. Part II. 
(D. xxxiv. 9. 25) p. 331, § 10. On the other side we 
may take as examples Comment, on Dig. Vet. Part I. 
(D. IV. 4. 7) p. 432: "Quaeritur...utrum in spiritualibus 
minor possit restitui...Glossa tangit istam quaestionem, 
sed quaestio pertinet ad canonistas." So Comment on 
Codex, Part I. (C. v. 4. 6) p. 522, discussing whether the 
son of a clerk and his concubine can be legitimated — 
"standum est determinationi canonistarum." Again, 
Comment on Infort Part I. (D. xxix. 2. 93) p. 500: 
"Quaero utrum per pactum posset renunciari successioni 
viventis...Non procedit de jure canonico, cui in hoc est 
standum." In other cases he is ready to stand by the 
opinion of the theologians — Comment, on Infort. Part II. 
(D. xxxiv. 9. 25) p. 330, § 9 : " Puto, salva ratione 
theologorum, etc." Comment, on Codex, Part I. (C. II. 
3. 30) p. 164, § 6 : " Hoc dico salvo judicio et deter- 
minatione canonica et theologorum." Comment, on 
Infort. Part II. (D. xxx. 1. 5) p. 8, § 3 : " De hoc inter- 
rogavi plures magistros et baccalaureos in theologia." 

In one interesting case, however, and only one, so 
far as I know, does Bartolus break through his usual 
reverence into something like contempt for a canonist 
and his Law — this canonist was perhaps his colleague. 

26—2 



404 APPENDIX B 

Vide Comment on Infort Part II. (D. xxxviii. 11. 6) 
p. 539: "Item habes quod per sola sponsalia contra- 
hitur affinitas...et ibi quod nuptiae debent esse nuptiae 
licitae. . .ut excludant conjunctiones illicitas et nefarias. . . 
Et hoc de jure civili. De jure canonico est totum 
contrarium...Et pro hoc fuit quaestio. Hie est statu- 
tum quod non potest aliquis esse potestas vel capita- 
neus, qui esset affinis alicujus nobilis: modo fuit electus 
quidam dominus de Guido Faventia potestas hujus 
civitatis, qui contraxit sponsalia cum quadam nobili. 
Quaerebatur an esset affinis. Dominus Recuperatus, 
quia ego non eram hie, dixit quod de jure suo, affinitas 
non contrahebatur nisi per copulam carnalem: tamen 
bene dixit de jure suo, quia potuit dicere quidquid 
voluit de jure suo, etc." Bartolus mentions this 
Recuperatus or Recuperus on at least two other oc- 
casions : once as having given a " consilium " " bene " — 
" et ita sensimus nos omnes," vide Comment on Codex y 
Part II. (C. vi. 25. 2) p. 55 — and on the other occasion 
as having given a " consilium " along with Bartolus 
himself 1 and Franciscus de Tigrinis, vide Comment on 
Infort Part it. (D. xxxi. 1. 89, § Imperator) p. 139, § 11. 
This seems to show that Recuperatus was a colleague 
of Bartolus. He must have been considerably older 
than Bartolus, since he was also a colleague of Cino ; 
two "consilia" printed by Rossi — vide vol. v. p. 312 
and documents no. 56 (pp. 121-2) and 57 (pp. 123-4) — 
are signed by Cino, Recuperatus and another. Bini, 

1 Among the additional Consilia, first printed, as far as I know, in 
the Venice ed. of Bartolus (1596), occurs one (no. xxi. p. 188 verso) 
subscribed both by a " Kecuperius de Sancto Miniato ' ' and by 
Bartolus. 



APPENDIX B 405 

Memorie Istoriche delta Perugina Universita, Vol. I. 
Part I. p. 181, mentions him as becoming Professor of 
Canon Law in 1322, and as going in the same capacity 
to Florence in 1334. Bartolus came to Perugia in 1343. 
There is no difficulty as regards the first reference 
above, since Bartolus' words " non eram hie " would well 
accord with these dates, but the other two references 
look as if Becuperatus and Bartolus were colleagues. 
Perhaps Becuperatus had returned to Perugia. 



APPENDIX C 

The following passage from the Comment, on the 
Digest of Bartolus will illustrate the relations of Juris- 
dictio and Imperium. "Quaero," says Bartolus 1 , "utrum 
imperium merum et mixtum comprehendantur sub hoc 
genere, quod est jurisdictio? Quidam dicunt quod non 
per hanc legem (D. II. 1. 3). Ponuntur enim hie ut 
species separatae, jurisdictio ab imperio. Glossa tenet 
contrarium et bene... Est ergo jurisdictio genus. Item 
quaero, quot species contineat sub se jurisdictio, prout 
est genus. Respondit glossa, quatuor — merum et 
mixtum imperium, coercitationem modicam et simpli- 
cem jurisdictionem, et sub his omnes comprehenduntur. 
Et hoc modo dividit Jac. de Arena ; et Gul. de Cunio 
ponit coercitationem modicam sub mero imperio, et 
sic ponit tres species tantum. Certe ista non videntur 
vera : nam merum et mixtum imperium non sunt species 

1 Comment, on Dig. Vet. Part i. (D. n. 1. 3), p. 164, § 4. Cf. 
Tract, de Jurisdictio?ie, §§34-5, p. 396. 



406 APPENDIX C 

jurisdictionis immediate. Non enim jurisdictio divi- 
ditur in merum et mixtum imperium, sed imperium 
simpliciter sumptum dividitur in merum et mixtum. 
Die ergo, secundum Petrum, quod jurisdictio in genere 
sumpta dividitur in duas species, scilicet in imperium 
simpliciter sumptum et in speciem quae est juris- 
dictio... Item imperium subdividitur in merum et 
mixtum." But perhaps the clearest way to illustrate 
this will be by a diagram : it will have the additional 
advantage of showing, by its subdivisions, the exact 
contents of Merum et Mixtum Imperium. Instead, 
therefore, of reproducing the long discussion by Bartolus 
on these points, we shall condense the whole into one 
diagram, referring generally to his Commentary on 
D. II. 1. 3 1 . His definitions and distinctions, based 
upon those of Petrus de Bella Pertica, became the 
generally accepted treatment of the matter ; though in 
certain details corrections were made by Jason Maynus, 
one of the most famous of the later Bartolists, 

1 Pp. 163-6. In most editions, at the beginning of this second 
book of the Digest, there is a useful abstract, entitled "Divisiones et 
Declarationes Jurisdictionum," compiled from Bartolus' commentary 
and the corrections of Jason. Some editions also give an "Arbor" 
or diagram, which, however, is merely a skeleton with no details. 
The following diagram I have based in part upon the abstract ; but as 
that frequently does not reproduce the exact words of Bartolus, I 
have throughout quoted direct from his commentary, and referred to 
the pages and paragraphs, from which the quotations are taken. 




|| g'&COjg 
S O c3 fn coo 



dS|2sT|s| 



as 3 o d 



INDEX 



Accursius, Gloss of, vide Gloss 

Adolf (king of the Bomans), 307 

Agnes (Empress), 59 

Albericus (de Eosate), 21, 33, 106, 
107, 380-1 

Albert (king of the Komans), 305, 
307, 332-5, 340 

Alexander (of Eoes), 228 n. 2, 230 

Alphonse (of Castille), 219 

Andreas (de Isernia), 373 

Anonymous treatise on Bull 
Clericis Laicos, 317 n. 1, 335- 
6, 343; its author, 336 n. 1 

Antichrist, legend of, in medieval 
thought, 67, 231, 239, 246, 257, 
299, 300, 325 

Apologists, early Christian, and 
Empire, 54 

Aquinas (S. Thomas) and Ari- 
stotle, 112, 266; Bartolus a 
student of, 17 ; otherwise men- 
tioned, 112, 266-75, 293, 325, 
327 ; the continuator of his De 
Beg. Prin., vide Ptolemy (of 
Lucca) 
• . Aristotle, and Aquinas, 112, 266 ; 
and Bartolus, 8-9, 174-6, 385- 
7; otherwise mentioned, 112- 
3, 174-6, 266 and ff., 350-1, 
355-6, 385-7, 362, 391 

Arnold (of Brescia), 39, 116 

Assisi, 10, 126 n. 3 

Augustine (Saint), 56, 62, 64-7, 
102, 280 and ff., 352, 359, 391 

Augustinus(Triumphus), 106 n. 1, 
317 n. 1, 328 

Authority, 8-9 



Baldus, 2, 380, 389, 398 n. 1 
Bartolus — Biographical : Asses- 
sor, 3, 396, 397; birth, 1,4 n. 1; 
at Bologna, 398-9 ; and Baldus, 
398 n. 1 ; at Cagli, 397 ; and 
Charles IV, 3-4, 24, 25 n. 2, 
28, 31, 177, 197 ; consults Pisan 
MS. of Digest, 7; death, 4; 
doctor, 2 ; early life, 1-2 ; 
family-name, 395 ; not a found- 
ling, 1 n. 2;vhis teachers, 2, 
17; at Padua, 398; at Perugia, 

2, 3, 10, 382, 401-2, 405; at 
Pisa, 3, 396-7, 399-401; and 
Eaynerius Forlivensis, 398-9 ; 
his colleague Eecuperatus, 404- 
5 ; retires into solitude, 3, 396 ; 
his severity as judge, 396-7 ; 
his colleague Franciscus de 
Tigrinis, 7, 10 n. 1, 404; at 
Todi, 3, 115, 191, 397 

Theories and Opinions: Aris- 
tocracy, 176, 178; Authority, 
8-9 ; Banniti, 200 ; Castra, 
125-7\;v Civitas, and bishopric, 
125-6 ;, Civitas, a corporation, 
123-4, 153, 160-1, 189, 195; 
Civitas, what constitutes a, 
125-6 ;,VCivitas, the Emperor 
de jure superior of every, 122- 

3, 138, 195-7 yCivitas, external 
relations of, 195-207; Civitas, 
its own Fiscus, 119-22; Civitas, 
internal government of, 174- 
95 ; Civitas, can exercise Me- 
rum et Mixtum Imperium by 
concession, 135-8, by prescrip- 



INDEX 



409 



tion, 138-42^ by usurpation, 
136, 144; Civitas, its right to 
legislate, 144-54, 160-1; Civi- 
tas, "sibi princeps," 154-60, 
188-9, 197-8, 368-9, 370 ; 

vCivitas and Provincia, 142-4; 

n Civitas, a Kespublica, 116-8, 
119, 120 ^Civitas, a State, 108- 
9, 154, 160; Civitas and war, 
198-9 ; Canonist, the perfect, 
must be a civilian, 14; Canon 
Law, vide under Law; Civil 
Law, vide under Law ; Civilian, 
vide under Lawyer ; Civilis 
Sapientia, vide under Law, 
Civil ; Collisio Statu torum, 
148; Corpus Juris, in part a 
Pagan work, 47-52; Customs, 
vide under Statutes ; Decu- 
riones, 182-8 ; Democracy, 
177-8, 180-9; Digest, the, a 
Pagan work, 47-52 ^YDonation 
of Constantine, 26, 89, 94-8, 
99-100 ; Election, more divine 
than succession, 24, 34-5 ; 
Electors, the German princes, 
to the Empire, 29, 30, 36; 

V Emperor, the Eoman, alone 
can make general laws, 36-40, 
197 ; Emperor, bound by a 
compact, 46; Emperor, bound 
' ' de voluntate ' ' by his own 
laws, 45-6; Emperor at Con- 
stantinople, 28?VEmperor, to 
dispute his power sacrilege, 
perhaps heresy, 24-5; Emperor 
a German, 28-30 ; Emperor 
and his laws subject to higher 
laws, 45-7; Emperor, cannot 
permit usury, 47 ; Emperor, 
his place taken by Law, 198, 
207 ; vEmperor, his power de 
jure, though not de facto, uni- 
versal, 21-5, 45, 122, 195-8, 
201, 204, 207; Emperor, needs 
Papal approbation, 33-4; Em- 
peror, recognised by Christ, 27; 
Emperor, must respect pro- 
perty, 46-7 ; Emperor, rights 
of, before coronation, 30-4 ; 
Emperor, de jure superior of 



all Civitates, 122-3, 138, 195-7 ; 
Empire (Eoman), clergy a part 
of, 26; Empire, a delegation 
from the People, 34-6; Empire 
"a Deo," 24, 35; Empire, 
elective, 24, 34-5; Empire, 
England a part of, 26 ^Em- 
pire, its extent, 25-8; Empire, 
Prance a part of, 26; Empire, 
necessity of, apart from Em- 
peror, 197-8 v ; v Empire and 
Papacy, coordinate jurisdic- 
tions of, 72-4 ; Empire and 
Papacy, coordinate territories 
of, 75-80, 99-100, 104; Em- 
pire and Papacy, insincerity of 
.Bartolus, in discussing rela- 
tions of, 98, 100, 211, 322, 
389 ; Empire, inferiority of, 
to Papacy admitted, 86-100; 
Empire and Eegna, 24, 26, 
107-12 ; Empire, territory of, 
75-80, 99-100 ; Empire, trans- 
lation of, to Germans, 28-30; 
vEmpire, de jure universal, 21- 
8, 195-8, 201-7 ; vampire a 
Universitas, 24, 45, 196-8 ; 
Factions, 189-95 ; Fiscus, 119- 
22; Ghibellines, vide Guelphs; 
^/vGloss, authority of, 5-6, 9 ; 
Government, best form of, 19, 
174-80; Government of Civitas, 
dependent on people, 181-8 ; 
Government, relative value of 
different forms of, 178, 180, 
394 n. 1 ; Guelphs and Ghibel- 
lines, 189-95 ; VJurisconsulti, 
authority of, 9 n. 1 ; Juris- 
consulti, Pagans, 47-52; Jus 
Civile, Jus Commune, Jus Ca- 
nonicum, Jus Divinum, Jus 
Gentium, Jus Naturale, vide 
under Law ; Kings, Bartolus 
little concerned with, 107-8; 
Kings, origin of their authority, 
24, 110>VKings, a part of the 
Eoman Empire, 24, 26, 110- 
11: Kings, their power, 110- 
12 ;Mjaw, divine nature of, 12- 
13, 43;vLaw, Canon, 15-16, 
80-5, 402-5; Law, Civil, 12- 



410 



INDEX 



19^ N/ Law, Civil, and Canon 
Law, 15-16, 80-3, 402-5 ; Law, 
Civil, and Divine Law, 45, 52- 
3 ; Law, Civil, and the Em- 
peror, 41, 44, 198, 207^Law, 
Civil, the Common Law of the 
Empire, 40-4, 198, 201-3 ; 

, VLaw, Civil, and Law of Na- 
tions, 45, 53;yLaw, Civil, and 
Natural Law, 45, 53 ;^ Law, 
Civil, and Statutes, 150-2; 

y^Law, Civil, its universal va- 
lidity, 40-4 ; Lawyer, the Civil, 
15-16 ; Lawyer, the task of the 
Civil, 19-20 ; Merum et Mixtum 
Imperium, distinguishing mark 
between Civitas and Kegnum, 
26; Merum et Mixtum Impe- 
rium, Civitas can exercise by 
concession, 135-8, by prescrip- 
tion, 138-42, by usurpation, 
136, 144; Merum et Mixtum 
Imperium and Jurisdictio, 134- 
5, 405-7; Merum et Mixtum 
Imperium, privilege of kings 
and Majores Judices, 123, 126, 
142 ; Merum et Mixtum Impe- 
rium and Eegalia, 134; Meta- 
physics, 12, 13 ; Monarchy, 176, 
178-9 ; Papacy and Empire, 
vide under Empire ; Papacy, 
its right of depriving the Em- 
peror, 36 ; Papacy, submissive 
attitude of Bartolus towards, 
34, 86-7, 98, 389; Papacy, 
territory of, 75-80, 99-100; 

4 ^/Papacy, a universal power, 79- 
80, 99; Parvi Populi, 125-7, 
179 ; People, the, sovereign 
in independent Civitas, 177-9, 
181-9, 205; Populi Extranei, 
28, 198-9 ; Populus Eomanus 
(in wide sense), its extent, 25- 
8; Populus Eomanus, its re- 
lations with Populi Extranei, 
198-9; Populus Eomanus (in 
a narrow sense), 35; Populus 
Eomanus and the Emperor, 
36-40; Populus Eomanus, its 
right to legislate, 36-40; Ee- 
galia, 134 ;N/Reprisals, 203-7 ; 



Eome, "communis patria," 29- 
40 ; Senate, corresponds to Col- 
lege of Cardinals, 74; Senate, 
right to legislate, 36-40; Sta- 
tutes and Customs, 144-54 ; 
Statutes and Customs, and 
Civil Law, 150-2 ; Statutes 
and Customs and higher laws, 
148:VTheology, 12, 13, 14, 17, 
18, 19 ; Text, 6-7 ; Tyranny, 
162-73, 179-80 ;^Universitas, 
the Empire a, 24, 45, 196-8; 

.^Universitas, the Civitas a, 123- 
4, 153, 160-1, 189, 195, 390; 
Villae, 7, 125; World, the 
Emperor lord of, 21-5 ; World, 
division of de jure gentium, 110 

Otherwise mentioned : and"""" 
Aquinas, 17 ; and Aristotle, 
8-9, 175, 385-7; authenticity 
of his treatise De Differentia, 
etc., 16 n. 2; authenticity of 
his comment, on Law Caesar, 
399; and Dante, 17, 89, 90-1; 
his sense of history, 49-52 ; his 
independence, 7>;vhis influence, 
392-4; a lawyer, not political 
philosopher, 4, 19-20, 387; 

SV^udgment of Dr Chiapelli on, 
384-5, 388, 389, 390-1; judg- 
ment of Dr Figgis on, 384 ; his 
patriotism, 30, 381 j^a Post- 
glossator, 4, 387 ; practical 
character of his work, 9-11, 
144, 162, 189-90, 193, 204, 
382-3 y^has no political system, 
20, 208 ; and Ptolemv of Lucca, 
88,320-2; his style ,"392; wide 
range of his knowledge, 17-18 

Bodin, 20 n. 1, 25 n. 2, 381, 
393-4 

Bologna, Bartolus at, 398-9 ; re- 
vival of Eoman Law at, 4, 35, 
51, 70, 101-5, 131 

Boniface VIII, 67, 315, 327, 332- 
7, 356 

Bonizo (of Sutri), 69 n. 1, 215 
Vulgar us, 23 

Buttrigarius (Jacobus), 2, 38 n. 1, 
46 

Byzantinism, 55 



INDEX 



411 



Cagli, 397 

Canon Law, vide under Law 
Cardinals, college of, 74, 215 
Charleniagne, nationality of, 215- 
6, 238, 241, 255, 256, 342; pro- 
phecies connected with, 244-5 ; 
otherwise mentioned, 57, 58, 
59, 61 
Charles (of Anjou) and the Em- 
pire, 215-6, 245-6, 341-2; and 
the Papacy, 213-9 ; senator of 
Eome, 213, 216 ; king of Sicily, 
213, 218 
Charles IV (Emperor) and Bar- 
tolus, 3-4, 24, 25 n. 2, 28, 31, 
177, 197; and Italy, 28, 309, 
311 ; praises democracy, 177 
Charles V (Emperor), 388 
Chiapelli (Dr), his judgment on 
Bartolus, 384-5, 388, 389, 390- 
1 
Childeric, deposition of, 354 
Christendom, western, contermi- 
nous with Populus Bomanus, 
28, 45; unity of, 27, 196-203, 
266, 368 
Christianity and the Boman Em- 
pire, 54-6 
Church and State, vide under 

State 
Cicero, 65, 297 
. v Cino da Pistoia and the Canonists, 
16, 75 ; and the Gloss, 5 ; 
master of Bartolus, 2; and 
the Ultramontani, 5 ; otherwise 
mentioned, 32, 33, 40, 41-2, 
48, 308, 372 
Civilians, vide under Lawyers 
Civil Law, vide under Law 
Civilis Sapientia, vide under Law 
Civitas, Aristotelian view of, 112- 
3, 266-8, 274-5, 289-90, 350, 
379; Civilian's view of, 113-4, 
116, 266-7, 379, 391; Dei, 56, 
65-7, 391 ; and vide under Bar- 
tolus 
Clement IV, 215, 216, 219 
Clement V, 75, 76, 77, 93 n. 2 
Colonna (Cardinal), 229-30 
Comitatus, 130-1 
Conciliar Movement, 366 



Constance, Peace of, 133, 134, 137 

Constantine, Donation of, vide 
under Donation 

Corpus Juris, its medieval di- 
visions 12 n. 1 ; in part a 
Pagan work, 47-54 

Crassus (Petrus), 69-70 
^Cujas, 393 

Dante, and medieval lawyers, 
21 n. 1; otherwise mentioned, 
2, 30, 91, 94, 303-9, 311, 312, 
368 ; and vide under Bartolus 

Disputatio inter Militem et Cleri- 

cum, its author, 342 n. 2 ; 

otherwise mentioned, 362-4 

y Donation of Constantine, 94, 315- 

' 23, 328-30, 343-50; and vide 

under Bartolus 

Donatists, 66 

Dubois (P.), 342 

Durandus (G.), 32, 33, 373 

Egidius (Bomanus), 112, 175, 
267, 273, 274, 387 

Electors (to the Empire), 232, 
238, 320, 321, 341; and vide 
under Bartolus 

Empire (Boman), Aristotelian 
view of, 113, 272-302, 350; 
Civilian's view of, 70-2, 101-7, 
113-4, 208-9, 267, 295-6, 362, 
378-81, 388-90, 391-2; and 
England, 388 n. 2, 391 n. 2; 
and France, 215-6, 341-70; 
and Germany, 128-9, 220-5, 
231-4, 235-65, 312-4; and the 
Hohenstaufen, 35, 133-4, 209- 
10, 242, 263; and Italy, 128- 
30, 217, 220-5, 303-15; neces- 
sity of, 226-7, 324-5; and 
Papacy, 53-72, 101-7, 214 and 
ff . ; a ruling power within the 
Church, 53-72, 101-7, 246-8, 
253, 263-5, 266, 296-302, 237, 
356-7; projected reform of by 
Clement IV, 219, by Urban IV, 
218, by Humbert de Bomanis, 
220-4, by Nicholas III, 221-2, 
224-5, 234-5 ; and vide under 
Bartolus 



412 



INDEX 



Engelbert (of Admont), his trea-^' 
tise De Ortu et Fine Romani 
Imperii analysed, 278-303 ; 
compared with Dante, 304 ; 
otherwise mentioned, 106, 326, 
362 
s England, and Empire, 388 n. 2, 
391-2 ; opposition to Eoman 
Law in, 84 ; a part of Populus 
Eomanus, 26 ; and Papacy, 
331, 354 n. 1 

I * Faber (J.), 374, 377-8 

Fazzio (degli Uberti), 312, 314-5 
Figgis (Dr), criticism of his Res- 

publica Christiana, 101-7 ; his 

judgment on Bartolus, 384 
Florence, daughter of Eome, 303 
«f France and Empire, 215-6, 341- 

70; and Papacy, 331-2, 340-1, 

343-50, 351-8 
Franks, French, 215, 242, 342, 

344-6; Germans, 235-42, 254-6 
Frederick I, 132, 133, 191, 210, 

242-3 
Frederick II, 134, 243-5, 260, 

307-8, 355, 358 
Frederick (of Meissen-Thurin- 

gen), 245 

Gelasius II (Pope), 55, 266, 296, 

361 
Gentilis (Albericus), 201, 393-4 
Gerhard (of York), 68 
Germany, the Emperor in, 28-30 ; 

and Empire, 220-5, 231-4, 235- 

65, 312-4, 315 
Ghibellines, vide Guelphs 
Gloss, 4-5, 6, 117 n. 3, 210; its 

opinions mentioned, 23, 25, 49, 

97, 116, 362; to Decretals, 33; 

and vide under Bartolus 
V Glossators, the, 4-5, 113, 146, 

208-9, 210, 379, 383, 387 
Gregory I (Pope), 163 
Gregory V (Pope), 320, 321 
Gregory VII (Pope), 57-64, 331, 

391 
Gregory IX (Pope), 329 
Gregory X (Pope), 214, 215, 216, 

226, 247, 341 



Grotius, 25-8, 201 

Guelphs and Ghibellines, 189-95, 

303-4 
Guido (of Perugia), 117 
Guillelmus (de Cunio), 38, 39, 

378 n. 1 

Henry III (Emperor), 57, 69 
Henry IV (Emperor), 50-61, 69 
Henry VII, 76-8, 87, 89, 217, 

305-6, 308 
Henry (of Cremona), 317 n. 1, 

339, 358, 359 
Hincmar (of Rheims)j 57 
Hippocrates, 8-9, 386 
Hohenstaufen, and Jordan of 

Osnaburg, 242-4; and Notitia 

Saeculi,259-QS; vide also under 

Empire 
Humbert (de Romanis), 220-4 

Igneus (J.), 373-4, 375, 377 

Imperialist position in Investi- 
ture Struggle, 67-72 

Imperium, vide Empire 

Innocent III (Pope), 321, 331, 
338 

Innocent IV (Pope), 316, 355 

Interregnum, 214, 217, 234, 307, 
327 

Investiture Struggle, 57-70, 127- 
30, 358 

Italy, and Empire, 217, 220-5, 
303-15 ; v communal independ- 
ence in, 127-34 ; northern, after 
fall of Hohenstaufen, 212-3; 
southern, after fall of Hohen- 
staufen, 213-4 ; and Papacy, 
328-30 

Jacobus (de Ardizone), 32 n. 2 
Jacobus (de Arena), 32, 33 
Jacobus (de Belvisio), 2 
Jacobus (de Bavanis), 374, 375, 

376-7 
Jews, 28, 106 
Joachim (of Fiore), 257 
John VIII (Pope), 57 
John (of Bohemia), 173, 309 
John (of Paris), 343-7, 351-2, 

358-60, 364-8, 378, 394 n. 1 



INDEX 



413 



Jordan of Osnaburg, reputed 
author of De Praerogativa, 
227-31, 234-5; Chapter I of 
the treatise analysed, 231-4 ; 
remaining chapters analysed, 
236-50 

Jurisdictio, and Meruni et Mixtum 
Imperium, 127, 131, 135, 405-7 

Justinian, 45, 69, 71 

Kingship, its origin, 61-3 

^Law, Canon, 15-16, 83-5 ; and 
vide under Bartolus 

Law, Civil, vide under Bartolus 
vLaw, International, 148, 201, 

203 
f Law, Lombard, 84 

Law, medieval and modern views 
of, compared, 42-3 

Law, Roman, hostility to, 15-16, 
84, 369, 380; and medieval 
political thought, 51-2, 70-2, 
101-7, 131, 208-9, 292, 295, 362, 
379-80, 389-90 ; V ' reception ' ' 
of, 44, 379, 393 ^revival of, at 
Bologna, 4, 35, 51, 70, 101-5, 
131 

Law vers, work of the medieval, 
390 

Leo I (Pope). 330 

Leo IX (Pope), 215 

Lewis IX (Saint), 348 

Lewis (of Bavaria), 86, 348 

Lex Begia, 35, 36 
^Lucas (de Penna), 106 n. 1, 108 
n. 1 

Lupoid (of Bebenburg), 312-4, 315 

Lyons, first council of, 261 ; 
second council of, 220 



-7 



Martinus, 23 

Martinus (Sulimanus), 38 

Marsiglio (of Padua), 21 n. 1, 72, 

354 n. 2 
Maternus (Saint), legend of, 248- 

50 
Merum et Mixtum Imperium, 

history of terms, 127-34; and 

Jurisdictio, 127, 135, 405-7; 

and vide under Bartolus 



Middle Ages, and authority, 8 ; 

meaning of term, 391 
Montesquieu, 394 n. 1 

Nicholas I (Pope), 57 
Nicholas III (Pope), 329-30, 349 
Nicholas (de Neapoli),49,108n. 1 
Xotitia Saeculi, analysed, 251- 
65; its author, 250 n. 1 

Occam (William of), 72, 94 
u - Oldradus (de Ponte), 2, 106 n. 1, 
380-1 
Optatus (Saint), 54 

Padua, 398 

Panormitanus, 86 

Papacy, Aristotelian view of, 
270-2; belongs to Romans as 
"seniores," 233-4, 239,253-4, 
264 ; and Empire, vide Empire ; 
and England, 331, 354 n. 1; 
and France, 331-2, 340-1, 343- 
50, 351-8 ; and northern Italy, 
213-4 ; and southern Italv, 
212-3; and Rome, 328-30, 
349; Imperial claims of, 323-9; 
and vide under Bartolus 

Papalist position in Investiture 
Struggle, 57-67, 69 n. 1 

Paulus (de Leazaria), 93 

Paro, 260-3; its date, 263 n. 1 

Peace, 66, 282, 305 

Perugia, daughter of Rome, 303; 
independence of, 78 ; and vide 
under Bartolus 

Peter (Friar), 1-2 

Petrarch, 2, 30, 305, 309-12, 391 

Petrus (de Bella Pertica), 41, 374, 
375-6, 406 

Philip III (of France), 341 

Philip IV (of France), 315, 341-2 

Pisa, vide under Bartolus 
,^/Tlacentin, 37, 38, 39 

Plenitudo Potestatis, 330-1 
.^Postglossators, 5, 7, 208-9, 210 

Ptolemy (of Lucca) , reputed con- 
tinuator of De Peg. Prin. of 
Aquinas, 269 n. 1 ; otherwise 
mentioned, 275-8, 317-22 ; and 
vide under Bartolus 



414 



INDEX 



Quaestio de Potestate Papae, 347- 

8, 353-5, 360-1 
Quaestio in Utramque Partem, 

348-50, 357, 358, 369-72, 380 

Eabelais, 18 n. 1, 393 
Baynerius (Forlivensis), 2, 398-9 
"Eeception," the, 44, 379, 393 
Eecuperatus, colleague of Bar- 

tolus, 403-5 
Eegalia, 131-4 
Eense, Diet of, 34 
' ' Bex in regno suo est Imperator 

regni sui," 109, 368-81, 392 
Eex Eomanorum, origin of title, 

30; title superseded, 34; and 

vide under Bartolus 
Eichard (of Cornwall), 219 
Eienzi, 39, 116, 312 
Eobert (of Naples), 76-8, 312 
Eoman Law, vide Law 
Eome, and the Emperors, 306-7,' 

311 ; mother-city, 303 ; and the 

Popes, 328-30, 349 
Eoncaglia, Diet of, 132 
Eudolf (of Habsburg), 214, 217, 

221-2, 235, 246, 247, 248, 

307 334 
Eudolf (of Swabia), 63 

Sacerdotium, vide Papacy 

Sandys (Sir E.), 388 n. 2 

Saracens, 28 

Savonarola, 394 n. 1 

Sicily, 212-3 

Sigismund (Emperor), 388 

Signorolus (de Homodeis), 399 



Spoleto, 10, 126 n. 3 

State, Aristotelian view of, 113, 
266 and ff., 350, 362, 368, 379; 
Civilian's view of, 70-2, 101-7, 
113-4, 208-9, 267, 295-6, 362, 
378-81, 388-90, 391-2; and 
Church, terms, not applicable 
to early Middle Ages, 56; and 
Church, 53-72, 101-7, 246-8, 
253, 263-5, 266, 296-302, 391 ; 
the modern, 368, 379, 383, 391 

Statutes and Customs, history of, 
145-6; and vide under Bar- 
tolus 

Studium, and Fiance, 239, 240, 
253-4 

Tartars, 28 
vText, and Glossators, 4-5; and 
Postglossators, 5 ; and vide 
under Bartolus 
>/ Theologians, hostility of, to Eo- 
man Law, 15, 16 
Translatio Imperii, 216, 234-5, 
245, 320-1, 344; and vide 
under Bartolus 

Ultramontani, 5, 373-8 
Urban IV (Pope), 213, 218-9 

Valla (Laurentius) , 18 n. 1, 117 

n. 3, 392 
Venice, 1, 26, 41 

Worms, Concordat of, 129-30 

Zabarella (Cardinal), 21 n. 1 



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